Comment by paganel | Hacker News Reader

Comment by paganel | Hacker News Reader

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> And in civil law countries judges still heavily rely on precedent to aid in interpreting law.

The US and the UK are different in one other aspect compared to most Continental countries, more exactly in the fact that they had had a "democratic" and fair judicial system for at least the last 200 years, so there's plenty of cases from which to create "fair" precedents.

For comparison, my country (in Eastern Europe) has been a Communist dictatorship for 50 years, and it would be a little strange to judge a present complaint based on cases judged in the past by communist-controlled judges. The same goes for countries like Italy (which had Mussolini and the fascists rule them for 20+ years), Germany (the Nazis), Spain (Franco), Portugal (Salazar) and so on.

Plus, in this discussion I'm more on Thomas Paine's side against Burke's, the past has no intrinsic "value" stored in itself, the common law comes from the "dark ages". I know Napoleon is still pretty much hated in the Anglo-Saxon world, but in imposing his judicial code he was on the more enlightened side of things.

>Germany (the Nazis)

IIRC this actually happened, albeit on an individual basis: When prosecuting communists in the 50s and 60s in Western Germany, some judges considered the defendant to be a repeat-offender if they had been convicted of being a communist in the Third Reich.

Yes, the judges were former Nazis.

Edit: Source (German, I'm afraid): http://www.heise.de/tp/artikel/14/14361/1.html

To be fair, while Nazi Germany wasn't exactly democratic and there was a lot of politics in how laws were applied, being a communist activist was illegal both under Nazi German law as well as under West German law (in the 50s and 60s anyway).

The reasoning was less that someone had been convicted "earlier in this country" but that they had been convicted before at all, indicating they've literally done the same thing before and gotten punished for it.

If you buy into the logic that repeat offences constitute a more severe crime, it's sensible to take prior offences into account even if they were persecuted under a different jurisdiction.

Of course the idea that "resistance against the state" under the Nazi regime could serve as a prior offence seems ludicrous but let's not pretend the persecution of communists during the Cold War was fairer than the persecution of political undesirables before (though the punishment was obviously different).

>If you buy into the logic that repeat offences constitute a more severe crime, it's sensible to take prior offences into account even if they were persecuted under a different jurisdiction.

But Nazi Germany wasn't a state under the rule of law, so it's questionable whether someone convicted by one of its courts was really guilty of the crime they were accused of. I.e. the different jurisdiction wasn't trustworthy, so its verdict should have been ignored.

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