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Comment by lstroud | Hacker News Reader

Why does a court get to establish a rule like this? Shouldn’t this be a legislative responsibility?

Courts interpret laws when their application is unclear or illegal. Sometimes as a matter of course they develop a rules system for interpreting the laws. Then that rules system can get reused in subsequent cases and itself becomes a standard. There are many examples of “tests” courts have developed over the years.

The legislative process is slow. In an ideal world, the constitution and the parliament define the laws in general terms that do not need to be adjusted for every new technology or economic development. In Switzerland, there is even a law that says that if a law is obviously missing, judges are free to judge as if that law existed. So the judicative clearly also has a law-making role, but at a much lower level. It’s like the system architects and the programmers in software development: in the end, both engage in a design activity, just at a different level of abstraction.

Yes, I guess so. Thing is, that legislation is often slow, so courts have to decide matters.

In Germany also the legislation oftentimes is not competent. Many laws are made, that are without value, after they where on trial. So, at least in Germany, courts are oftentimes a second law maker, because they have to check, how all these rules fit together (in the best of all worlds, the legislation should do that beforehand).

It's worth pointing out there are different legal foundations. The United States is on something called Common Law [1], in which courts are generally supposed to follow precedent and not make up new stuff or function as de facto legislatures. Obviously, this is one of those plans that doesn't necessarily survive contact with the enemy, but under common law it is reasonable to criticize the court here as potentially overreaching. A mitigating factor in that criticism is precisely that many other peer jurisdictions have adopted the same standard on presumably similar bases of legislation, so there is some precedent in favor of using this same standard.

Germany is built on a foundation called Civil Law [2]. In this system, judges are encouraged to uphold principles and rule on the specifics of a case, regardless of previous cases that may have found in some way or another. Just as with common law, I'm sure judges may consult precedents as they find useful, but they aren't bound to them, and are, I presume, much less likely to mention them in judgments as they are not anywhere near as relevant.

This also applies in a fairly obvious fashion to Hermel's post that is a sibling to what I'm replying to. In Civil Law, which Switzerland also operates under [3], instructing judges to imagine reasonable laws is a reasonable thing to do. In Common Law, judges just imagining laws to be the way they believe they should be strikes at the foundation of the system.

(Perhaps ironically, it's probably easier for Common Law courts to function as de facto legislatures precisely because of the respect for precedential law, despite the fact they are nominally not supposed to. A certain court can make a decision and apply some test like this, and it tends to spread around the country unless some legislatures take explicit action to prevent it. It can even spread between countries, because common law courts can look at other country's common law courts and consider their precedents as well, though more weakly than their own. By contrast, while a civil law judge at first seems to be taking a legislative role when they make some decision based on laws that essentially only exist in their head, they are binding the future far less and the decision carries less global weight, making it much harder to truly "legislate from the bench" in the way we complain about in the US. Second order effects can be pretty twisted!)

[1]: https://en.wikipedia.org/wiki/Common_law

[2]: https://en.wikipedia.org/wiki/Civil_law

[3]: https://en.wikipedia.org/wiki/Civil_law_(legal_system)#/medi...

> The United States is on something called Common Law [1], in which courts are generally supposed to follow precedent and not make up new stuff or function as de facto legislatures.

Even while linking to Wikipedia articles, you manage to get the common law / civil law distinction almost completely backwards: the common law is a body of judge-made law resulting from judges acting as “de facto legislatures” (which is the source of the respect for precedent, as the prior decisions are themselves incorporated into law), whereas civil law is a system in which the law is strictly created by legislative bodies, and thus courts are expected to look exclusively to the acts of the legislature, and not prior court decisions.

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