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- Newsgroups: misc.legal
- Path: sparky!uunet!cs.utexas.edu!asuvax!ukma!lunatix!bmiller
- From: bmiller@lunatix.uucp (Barry Miller)
- Subject: Re: Judicial Power = "Create" Law? Founders Said Yes.
- Organization: Lexington Public Access Unix. -KY- (606) 255-9121
- Distribution: usa
- Date: Fri, 22 Jan 1993 00:44:06 GMT
- Message-ID: <1993Jan22.004406.3223@lunatix.uucp>
- X-Newsreader: TIN [version 1.1 PL6]
- Lines: 29
-
- For those who object to courts making law, I can envision an easy
- way to eliminate the judiciary -- simply create a society where
- all laws are made by the legislature. This can be done two ways:
- a legislature can set itself the task of imagining every possible
- factual situation which may ever arise in human doings, and then
- state exactly what legal relationships and consequences arise as
- a result of each fact situation. What happens if a left-handed,
- red-headed law student hits your car broadside during the night
- of a full moon? Look it up in the statute books.
-
- The second way to give the legislature complete law-making power
- is to allow it to pass a law something like this: "Everything
- not mandatory is forbidden." Then it could tell you what is
- mandatory. You would know exactly what you must do. (In such
- a society there would be no need for the phrase "may do.")
-
- Because neither of these alternatives appears acceptable, we can
- expect that the courts will continue to make law in fact specific
- situations. Legislatures will continue to pass statutes which
- govern broad areas of human conduct (how we drive, how we do
- business, how we make contracts) and courts will continue to
- apply those statutes. When the statutes do not fit particular
- fact situations, however, the courts will be left to decide legal
- relationships and consequences arising from those particular
- facts. The legislature will have a broad brush; the courts a
- fine one.
-
- --Barry
-
-