Precedent = Law?

[saysmydoctor]

I've been juggling a few debate topics in my head for numerous weeks and it probably stemmed from the virtually stagnant existence of real debate here. Most people have similar political opinions in this forum, very little variance from one to another. But I think concerning maybe historical-political beliefs, judicial philosophies, economic schools of thought, there may be a bit more variety than meets the eye concerning normal discourse over the news and policies of the administration.

This topic actually stems from a dinner table discussion with my dad over whether precedent is law or not. The question was 'is precedent the law, have the same weight as law?'

I'm under the belief that yes, it is. Beyond their near synonymous definitions, I think it is true. Each branch of government in a certain way does have a legislative ability.

The Legislative obviously makes the law, the Executive can issue an Executive Order, and the Judiciary's rulings have the same weight as law. Montesquieu's idea of separation of powers allows for each branch to cooperatively check the other's legislative ability. The Executive's legislative, the weakest, can be easily overruled by the Courts or outlawed by the Legislative Branch. The Executive nominates who sits on the Courts and signs the laws/has the veto power. The Legislature confirms the nominees and can overrule the Court with a constitutional amendment (which has happened before). I know everybody knows this, I just figured I'd spell it out so that we can avoid anyone misspeaking on my perspective of what the facts at hand are.

Marbury vs. Madison, in establishing judicial review, ruled famously that "It is emphatically the province and duty of the Judicial Department to say what the law is." I don't want to become long-winded, so I guess I leave it to everyone else to start discussing this.

Is precedent 'law?' And beyond that, is precedent in a lot of ways almost a super-law?

[loveisdead]

yes, it basically is a super-law because once it is set, the courts have to interpret similar cases in that way.

[Manicapathy]

Sure is. I demonstrate in a more low brow way, but this is legit.
A man, I forget where, was charged with sexual gratification with an animal (bestiality) after being caught having relations with a dead deer. When he went to trial, he got off scot free, because his public defender representative is the smartest man on the planet. He stated that the charges should be dropped, because he was not going at it with an animal, but with a carcass, and that at the point of death, the animal ceases to be an animal. It would be the equivalent of someone sticking their junk in raw hamburger.
So the precedent was set: live animals= illegal. Dead animals= legal.

[Machu505]

I was under the impression that Supreme Court rulings were based off of Constitutional interpretations, and therefore the things its rulings suggest have theoretically always been law.

[loveisdead]

I was under the impression that Supreme Court rulings were based off of Constitutional interpretations, and therefore the things its rulings suggest have theoretically always been law.
Your impression is correct.

[saysmydoctor]

I guess I'm looking more for how the Court and Appellate Courts rule on controversial issues/legal grey areas that have not been covered. To say that precedent isn't law doesn't make sense to me. Roe v. Wade is the ground on which abortions became legalized, etc.

So, I guess my question is really--is it wrong for anyone to say that Courts don't make policy?

[loveisdead]

Yes. Courts do not make the law. They interpret the law. If they interpret that the law is not constitutional, their interpretation becomes law.

[Machu505]

Theoretically, the courts don't make policy. They expose it.

[open mind]

in practice precedent is law no matter how crazy.

for instance corporations are treated like people under the law due to a typo.

[Machu505]

in practice precedent is law no matter how crazy.

for instance corporations are treated like people under the law due to a typo.

Link?

[loveisdead]

Link?
http://www.hightowerlowdown.org/node/664
(http://www.dennisfox.net/papers/corps-article.html)

[open mind]

Link?

http://reclaimdemocracy.org/personhood/santa_clara_vs_southern_pacific.htm l

typo may not be the right phrase for it, but a court report does not equal a legal decision.

[The Pharmacist]

I guess I'm looking more for how the Court and Appellate Courts rule on controversial issues/legal grey areas that have not been covered. To say that precedent isn't law doesn't make sense to me. Roe v. Wade is the ground on which abortions became legalized, etc.

So, I guess my question is really--is it wrong for anyone to say that Courts don't make policy?


but Roe v. Wade isn't a super law b/c it is being challenged by the states. IT isn't held as a law that the states must abide by. Many states want to get rid of the ability for women to get abortions.
i dunno its late i dunno if i'm making sense

[saysmydoctor]

The super-law corollary was just that, a corollary question.

[Nevuk]

It depends on the level of the court. The more precedents in place, the higher the court must be to ignore them. If the supreme court wished to overturn something with several precedents that disagree with them, that is their role.

Essentially, precedents should be used as a tool to help in interpreting the law, rather than as laws themselves. Precedents are just a specific interpretation of a Law, and interpretations can be disproven.

Also, I don't think that the corporations thing was a typo. There was a bit of arguing from the southern states about that specific phrase, but well, they'd just lost a war

[saysmydoctor]

That's what my dad said, he said Courts simply work to establish precedent and I was arguing that these precedents are essentially law. They fill a void on a grey area where the issue is too controversial or whatever and that their ruling has the weight of law. Brown v. Board was enforced by the police in some cases. He thought I was making the precedent=law a stretch at best.

[Nevuk]

That's what my dad said, he said Courts simply work to establish precedent and I was arguing that these precedents are essentially law. They fill a void on a grey area where the issue is too controversial or whatever and that their ruling has the weight of law. Brown v. Board was enforced by the police in some cases. He thought I was making the precedent=law a stretch at best.
This is actually a question of literary theory, one as to whether the text is more important than the interpretation. Some believe that the text itself trumps all interpretations of it (new formalists, deconstruction etc.), others think the text doesn't matter at all (new historicism, post-structuralism to an extent, reader oriented criticism). However, here is my opinion : if you are writing a new text yourself you are likely going to use other texts as a reference on how you should be writing it. The same holds true for interpretations of texts. Since in a court of law, all they are doing is interpreting texts, they are going to assign far greater weights to other interpretations.