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Comment by School-Cotton | Hacker News Reader

In the US, when existing law doesn't determine what will happen in a particular case, a judge uses his or her judgment, and creates new law. Since most judges aren't idiots, they aren't going to be tricked by this sort of scheme.

Edit: I don't even think this would require new law. You presumably don't get to claim you don't possess the contents of a safe because you wrote the combination down in code or backwards or something.

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Judges do not create new law. They interpret existing law and decide if a potentially new use case can be considered to be covered under existing law. If so, they make a ruling to that effect, and depending on jurisdiction and other factors, that ruling may become precedent that other courts can/will follow. If not, they dismiss the case, and it's up to the legislature to make a new law governing this use case, if they so choose.

Having said that, I agree that judges aren't idiots, and they can often spot when someone is trying to be creative in order to circumvent existing law. The IRS also has pretty broad latitude in determining what falls under existing tax law and exactly how, and the courts take a dim view of people who are trying to evade taxes.

Judges do also make new law even where existing statutes and precedents don't give an answer to follow. As one of many examples, California's courts invented our current idea about strict product liability for manufacturers. Statutes came second.

This is part of our longstanding common law tradition, going back far beyond the prominence of statutes.

Judges do not create new statutes, however in common law jurisdictions they do create new law.

Other systems might work the way you described, but in the US (and England, whose legal tradition the US inherited), judges certainly do make new law.

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