Re:Choosing between democracy and party, Americans will chos...
by wahern on Tuesday June 02, 2020 @09:28PM
(#23398695)
It's definitely not the primary role. It's principally a consequence of stare decisis. And even though stare decisis is the defining characteristic of the common law, in actuality many other jurisdictions apply the principle, including in Europe, just without formalizing it. The promotion of consistency is a nearly universal characteristic of all human legal systems, and stare decisis is consistency reified.
[1]
In terms of the exercise of de facto law making powers the United States is somewhat of an outlier owing to the fact it was one of the first to explore how to apply the principles of 1) separation of powers and 2) to do so in the context of a Federal system. Also, the concept of Parliamentary Supremacy solidified in England after the American colonial legal system had begun to evolve on its own. So for these reasons it's unsurprising we ended up diverging from England, and that other former British colonies didn't end up with lawmaking powers quite as extensive as in the U.S. Similarly, it's unsurprising that the evolution of European Union legal rules arguably mirror much of what happened in the U.S.--de facto application of stare decisis, de facto judicial review powers of top EU courts, etc.
[1] Here's an interesting 1988 law review article that includes an exploration of the legal system of revolutionary France: "Tort Liability in France for the Act of Things: A
Study of Judicial Lawmaking", https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?artic... The French so despised the practice of judicial lawmaking that they made it a criminaloffense for judges to disambiguate the law, mandating that courts instead refer any legislative ambiguities to the Congress for interpretation. Guess how often that happened. So if you start from the premise that an intrinsic function of the courts is disambiguation, and combine it with the principle of consistent application of the law, guess where you end up. See also "Why Europe Rejected American
Judicial Review
and Why It May Not Matter", https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?arti...
In terms of the exercise of de facto law making powers the United States is somewhat of an outlier owing to the fact it was one of the first to explore how to apply the principles of 1) separation of powers and 2) to do so in the context of a Federal system. Also, the concept of Parliamentary Supremacy solidified in England after the American colonial legal system had begun to evolve on its own. So for these reasons it's unsurprising we ended up diverging from England, and that other former British colonies didn't end up with lawmaking powers quite as extensive as in the U.S. Similarly, it's unsurprising that the evolution of European Union legal rules arguably mirror much of what happened in the U.S.--de facto application of stare decisis, de facto judicial review powers of top EU courts, etc.
[1] Here's an interesting 1988 law review article that includes an exploration of the legal system of revolutionary France: "Tort Liability in France for the Act of Things: A Study of Judicial Lawmaking", https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?artic... The French so despised the practice of judicial lawmaking that they made it a criminal offense for judges to disambiguate the law, mandating that courts instead refer any legislative ambiguities to the Congress for interpretation. Guess how often that happened. So if you start from the premise that an intrinsic function of the courts is disambiguation, and combine it with the principle of consistent application of the law, guess where you end up. See also "Why Europe Rejected American Judicial Review and Why It May Not Matter", https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?arti...