There’s one thing I don’t understand about the debate about the law, specifically the conservative talking points about judges “making law” or legislating from the bench. Specifically, why anybody pretends this makes any sense whatsoever.
America, like a dozen or so other countries with historical ties to England, has a common law system. When America became a country, they didn’t sit down and write all new laws. Which makes sense; while there was plenty they wanted to overturn, the major focus was changing how government worked, not necessarily all the specific laws they lived under (indeed, that’d be a quick way to descend into chaos). Instead, they adopted the English “common law.” The common law was a body of legal opinions from various courts interpreting and applying statutes.
By adopting the common law, those early Americans were essentially relying on the English method of allowing judges to determine how laws should be interpreted and applied by providing the rationale and reasoning for each decision. In order to know what the law is in any given jurisdiction, it isn’t enough to read the laws as passed by legislatures, but to read “case law” that explicates those laws.
This is good for legislatures, because it saves them an enormous amount of time and, more importantly, makes sure that the law can cope with unforeseen situations. The law is immensely flexible because the ginormous body of case law allows them to build on a huge body of reasoning to construe how, when, and why the law should be applied–or shouldn’t.
This is different from the way law works elsewhere. Most of the nations of the world are republics in the French Revolution model, with a single, central government authority and comprehensive civil codes (influenced by the Code Napoleon). In these nations, judges are permitted only to apply, never interpret (or invalidate) the law.
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