NetNews Usenet Archive 1993 #3/NN_1993_3.iso/spool/misc/legal/23111

Text File | 1993-01-22 | 1.8 KB | 41 lines

Newsgroups: misc.legal
Path: sparky!uunet!cs.utexas.edu!asuvax!ukma!lunatix!bmiller
From: [e-mail] (Barry Miller)
Subject: Re: Judicial Power = "Create" Law?  Founders Said Yes.
Organization: Lexington Public Access Unix. -KY- [phone]
Distribution: usa
Date: Fri, 22 Jan 1993 00:44:06 GMT
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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