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Seeking Precedent As a Form of Changing the Law

Fwiffo          18 July 2015 11:28 AM

I have encountered this really weird attitude about how new attitudes should be instilled in a society. Here is a TED talk about Steven Wise arguing that animals should be regarded as legal persons. I also encountered this idea on an episode of Good Wife "Loser Edit". In it a big business man is contemplating on whether he should fund the legal fees for another business appeal to potentially produce a precedent in the law to favour his ideological goals. In order to decide he hires a friend that is of stark political opposition to him to try argue against in a mock trial to asses the probabilities of getting a favourable verdict.

This idea precident is the way that change happens seems very counterintuitive to me. If you want to set or adjust laws one should go throught the law making process using the law making body. Here instead appeals to fundamental and general laws are made within judical system to get an interpretation of already existing laws to make a specific intrepretation guideline to favour ones world view.

There are also issues that only big money can effectively even try to argue ideology in an actually effective fashion. Then there is the aspect that certain individual cases are made more prominent and others downplayed often based on how much they would work for or against ones position.

I can appriciate that law needs to give concrete resolutions to indivudal cases. But if a law is found ambigious there should be a process started to get the law to be more explicit. The kind of "rule by interpretation" is only possible when the law is allowed long to be inconclusive forcing judges to act when the lawmaker dares not. Some laws are even named after the incidents that sparked their explicit form but sometime lines of interpretation are given the same treatment. For example "brady violations" are about procecution knowing that exculpatory evidence exists but failing to have it entered into the ongoing trial. After the incident the responcibilities of not procecuting when the accused is known to be innocent and responcibilites about disclosing unfavourable evidence were made more clear. But to my understanding the law as such didn't change just what it meant in practise.

Now there seem to be differences between countries how much weight is given for principles derived generalised from individual cases and how much weight is given to explicitly passed laws.

However it seems that on issues like gay marriage there were state level elections and a 9 judge supreme court decision on the issue. This seems pretty uncomfortable that the same issue is being tackled by two branches of power. It is not abundant clear whether supreme court judges should be politically neutral. I get the feeling that in theory they should but in practise they are treated as valuable commodity by the political parties.

I think that a proper forum for Steven Wise to argue that animals be given person status should be a parlament. It has clear future focus and it is not a small detail in the law. There it could also be subject to an actual bill making process where needed changes to things other than classification of animals are given. But it seems the common law tradition guides him to do what he calls "strategic litigation".

What should be the criteria to handle an issue throught a law maker body vs interpretative body and has this division been blurred too much and if so how can the clarity of it be restored again?

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Silent Cal 22 July 2015 02:52 PM

For new legislation, being thorough and specific is the best way to restore the primacy of legislation. A fast-track system to legislatively resolve ambiguities that go to the courts would also be a big win.

Unfortunately, legislation-by-court-case often involves the Constitution, which can only be altered by supermajority and thus can't be patched to resolve a controversial issue.

There are judicial philosophies that favor a less expansive interpretation of the Constitution, but the issue is complicated by the fact that the court seems to have a consistent socially-liberal bias relative to the more directly-democratic institutions. So more restrained justice == more conservative justice. It's hard to get people to focus on the meta-level when it clearly has such a strong entanglement with the object level.


ChristianKl 20 July 2015 05:21 AM

Are you familiar with the term "case law" and the difference of how the Anglo system works in that regard as opposed to a lot of continental systems?