In a civil law system do the courts have the power to 'read into law' different rights into the constitution or bill of rights?
By that I mean the US supreme court ruled a ban on gay marriage unconstitutional which is what made gay marriage legal; it wasn't government legislation that legalized it.
Whereas in Mexico the supreme court recently ruled the law banning marijuana for personal use violated the constitution because of privacy rights, however the supreme court ruling in Mexico wasn't biding and pot is still illegal whereas the supreme court ruling in the US, a common law country, was binding and in effect legalized gay marriage.
Do supreme court's really have much power in civil law countries ?
In theory you're right, as Anglo law is based on precedents and you can't just pull stuff out of your ass. In practice it's all politics.
They have a whole lot of power yes.
>>306994
Elaborate
>>307004
Not him but like the other anon mentioned, precedent is everything.
>>307041
In civil law countries is what I'm asking m8
Like the example I gave between US and MexicAN courts
The Mexican court ruling had no effect on the status quo
>>306977
>based on precedents
Statutes still come first.
>>307119
>Statutes still come first.
Not necessarily in common law countries
It's all up to the courts
Like OP said, the courts can read into statues to makE or change law
>>307134
>It's all up to the courts
Where did you do your law degree?
>>307141
Not in a civil law country m8
Does common law makes the law harder to get, thus the lawyer and judges gets more power compared to the common man?
Is that why suing people is such a big thing in America?
>>307141
The US had a statute that did not recognize same sex marriage. The court said forget it, this precedent set in the 14th amendment over rules that statute
Europoor detected
>>307152
Nor am I. I wanna know which law school told you that statutes aren't primary so I can tell people to avoid it.
>>307176
Unless it's entrenched in the constitution most statues are secondary. In the US it's judicial supremacy m8
>>307183
Now you've gone from saying it's the case in common law countries to saying it's the case in the US. OK, kid, you don't seem to be back-pedalling at all.
I did notice you use of "Anglo law" in the first instance, so you cannot skirt around the issue by saying you were only talking about the US.
>>307119
>Statutes still come first.
Only the constitution. Even then, judges can change how it's interpreted
>>307172
It's just a different idea behind the concept of damages. The astronomical cases are supposed to make sure people and business don't act in a way that harms people. Damages here are extremely low compared to the US, so you don't see any ambulance chasing. Instead there's a lot more regulation through law.
>>307225
>se of "Anglo law" in the first
Not my post m8
If you're referring to Britain or Australia it's because they don't have an entrenched bill of rights
>>307229
The poster was referring to "Anglo law", not US law.
Try to pay attention.
>>307236
>don't have an entrenched bill of rights
The UK has a Human Rights Act which is, for all intents and purposes, entrenched.
If you weren't the poster I was responding to, then do not respond to me as if you are. I was replying to a specific point about the emphasis of statutes in "Anglo law".
>tfw no constutitional courts
feels bad man
>>307252
>tfw you don't need a constitutional court because our jurists are intellectual and not morons
>>307251
>The UK has a Human Rights Act which is, for all intents and purposes, entrenched.
>Bill passed so Britain isn't keked by EU bill of rights
>Britons don't even have civil rights
The watchful eye m8
>>307251
You are, in fact, speaking with more than two different people.
>>307279
That makes 4 of us.
British Priveges Act damage control
>>307274
>bill passed so Britain isn't keked by EU bill of rights
Literally how?
>>307292
So that Britain can change it if they want whereas changing EU bill of rights requireS EU parliament
Common Law is dead as a doorknob. Centralization and codification, along with all kinds of various technical reasons killed it dead since the late 19th century. Maybe it exists in some specific commercial adjudications , but in the general the difference between Anglo and Continental law systems are virtually non-existent, especially since the ECHR became a thing.
>>307322
Common law play a huge part in Canada except Quebec
We have a charter of rights but half the sections have been defined through precedents
Section 1 is now based off of R. v Oakes and section 7 R. v Collins and so forth
>>306965
>in Mexico the supreme court recently ruled the law banning marijuana for personal use violated the constitution because of privacy rights, however the supreme court ruling in Mexico wasn't biding and pot is still illegal
Literally what is the point of having a constitution, then?
>>307344
http://mobile.nytimes.com/2015/11/05/world/americas/mexico-supreme-court-marijuana-ruling.html?referer=&_r=0
"The vote by the court’s criminal chamber declared that individuals should have the right to grow and distribute marijuana for their personal use. While the ruling does not strike down current drug laws, it lays the groundwork for a wave of legal actions that could ultimately rewrite them, proponents of legalization say."
It lays the groundwork for more legal action whatever that means without precedent being binding
>>307252
>tfw no codified Constitution
Based Kiwi Government
>>307322
You wot? Here in New Zealand we've developed a bunch of new Torts and created a system of liability for leaky houses in the last 8/10 years alone
>>307821
Do you have rights?
>>307322
>t. someone who has never even glanced at the UK legal system
The ECHR has been significant but it hasn't made quite the sweeping changes you are suggesting. It has been very weakly incorporated into UK law and it's only the overzealousness of certain judges that has led to it UK law being interpreted so strongly with it mind. The way Convention rights are used really is nothing like it is elsewhere in Europe, and the UK has even ignored declarations of incompatibility under s 4 of the HRA 1998 completely.
>>308215
Nigga, since Costa v ENEL is EU law able to shit all over the national law of ANY EU member. It doesn't matter if UK law is relatively independent of EU influences, at the end of the day they still have to listen to Luxembourg
>>306965
Common law, not civil law
>>308236
EU law and Human Rights law are not the same thing, this a common mistake. Decisions by the European Court of Justice are binding on UK courts, human rights cases are not.
>at the end of the day they still have to listen to Luxembourg
But not necessarily to Strasbourg, don't conflate the different institutions.
The differences are still fairly substantial, and will probably grow what with the increasing perception amongst Britons that judges have been kowtowing towards EU decisions far too much even when they don't have to do anything but keep them in mind (I can't remember what the exact phrasing of the statute is). The precept of Parliamentary Supremacy means that human rights law, and even EU law to some extent are still subject to the whim of the UK legislative body (and by extension the government). Don't make the assumption that we are top keks in a legal sense, it's far more nuanced than that.
>>308255
He distinguished US as common Mexico as civil
No Mexican court cannot make laws
>>308456
Common law is gradually being replaced with statutes though
>>308700
They are complementary. I don't see why you think they are at odds.
>>308215
You are not discussing s.3 here, which does bring Convention law into effect by reading it into domestic law.
>>309179
By that I mean statutes are making up for precedents, it's not at odds like one better than the other.
I work at a real estate law firm and most transactional law is regulated by land registry act and condominium act. Precedents aren't as important in governing development and land transfer anymore
>>309190
No, but the courts will always be there to fill in the gaps left by legislative draftsmen. That makes judicial precedents and legislative statutes inherently complementary.
Will there ever be a statute which covers 100% of the legal issues which might arrive? Probably not. If it did, it'd be some hefty legal document.
>>308163
Rights exist before they're codified in a written constitution or statute. But we do also have a Bill of Rights Act, but it's basically at the same level as other laws.
In practice when a statute that's passed contradicts a right then some messy constitutional judicial manoeuvring happens with courts interpreting statues to be consistent with rights unless they absolutely can't.
>>309222
>But we do also have a Bill of Rights Act, but it's basically at the same level as other laws.
In Canada they passed a human rights act in the 60s, but in 1982 we brought the constitution home from Britain and amended our constitution to include the charter of rights and freedoms. Canadian constitutional reform is really complicated so it was a big deal. Until I took a course on the charter in uni I used to think it wasn't necessary. Now I realise how important it really is. Although many sections like the limitation clause, is based on a precedent R v Oakes. Precedents definitely play an important roll in interpreting the charter
>>309265
>human rights act in the 60s
Correction
It was bill of rights act
>>309265
>Canadian constitutional reform is really complicated so it was a big deal.
New Zealand constitutional debate gets really heated since the issues of indigenous rights and the issue of republicanism inevitably gets thrown in so a lot of the time such debate is thrown in the too hard basket.
For example in 1840 there was the Treaty of Waitangi signed between the Crown and various native tribes guaranteeing certain rights to the tribes in exchange for sovereignty. This was promptly ignored for about 130 years for practical purposes. Also due to translation errors sovereignty had not been transferred as such and in the Maori version of the treaty the tribes retained a form of governorship or chairmanship. The Government has dealing with this for the last 30 years or so with transferring land and other property rights over things like fisheries and frequency bandwidth. But because we don't have a written constitution the Treaty has "guiding" effect on laws, legislation and judgment. So what exactly to do with the Treaty is contentious for some parts of the public.
Getting back to the NZ Bill of Rights Act, it sounds similar to the Canadian BORA as we have a liberty-maximising section in s 6 but because it's only ordinary legislation it doesn't invalidate inconsistent law (s 4). This is the weakness of our law. The Government could get rid of it tomorrow if it wanted.
>>309357
>>309357
In Canada it's called the 7/50 rule
7 of 10 provinces need to be in favour of it which reoresentt 50% of the population
The indigenous rights sounds familiar. It's worse here because of Quebec. 1982 is when we amended the constitution to include a bill of rights, all provinces except Quebec signed it but Quebec was still bound by it because of the aforesaid 7/50 rule.
This all plays into the 1995 Quebec referendum
So there was the Meech Lake accord in 92 I think, which failed. The purpose was to recognize Quebec as a distinct society in Canada to give them some more powers if they sign the constitution basically. They almost had 7 provinces on board except one first nation member of provincial parliament in Manitoba voted against it because the amendment wouldn't recognize first nations groups as distinct societies.
This really fueled the nationalist agenda and contributed to the closeness of the 1995 Quebec referendum
Pic related, Elijah Harper held up the eagle feather voting against the Meech Lake accord
No government has tried constitutional reform since.
>>309422
Apologies
The 7/50 rule applies to constitutional amendments, and the Meech Lake accord was an attempted amendment
civil law is a stupid system that places emphasis on 'codes' rather than procedure and doctrine.
True, statutes are the highest form of law (i.e. most authoritative), but their text alone can only guide you so far.
>>309453
>but their text alone can only guide you so far.
Statutes are only as powerful as the courts interpret them to be
make way for best common law jurist of the last hundred years
>>310169
Owen Dixon a shit
>>309453
>mainly codified law with precedents filling out the blanks
>stupid
Just face it mate, there's nothing wrong with common or civil law. They're both good.
>>310169
Doesn't look like Kirby, mate.
>>309189
>does bring Convention law into effect by reading it into domestic law.
The most important part of that section is "as far as it is possible to do so" i.e. you can't interpret a statute if it leads to the actual words being changed.
New supreme court of Canada ruling overturning parts of the immigration and refugee act.
http://www.cbc.ca/beta/news/canada/british-columbia/supreme-court-mv-sun-sea-tamil-refugee-migrant-illegal-scoc-decision-1.3339634
Who said statutes have more authority than precedent?
"In two separate but related rulings, the top court found unanimously that two sections of the Immigration and Refugee Protection Act do not apply to some people who help refugee claimants reach Canada."
"A father offering a blanket to a shivering child, or friends sharing food aboard a migrant vessel, could be subject to prosecution."
The court did not strike down the sections of the law dealing with human smuggling, but imposed a narrower definition then was stated in the legislation.
This is a good example of a precedent being set without having to amend the legislation
>>307355
>distribute marijuana for their personal use.
>distribute
>personal use
hwat
in my country you can only have one plant, of a certain size, for personal use, and you can never ever share
however you can use it to make marijuana sub-products like lotions, sodas, paper and so on just fine.
>>312281
>distribute marijuana for their personal use.
I think it means not for profit or business just to get high. Like Jose grows pot and gives it to his friends for recreational use.
The courts ruling isn't binding though
>>307355
>that individuals should have the right to grow and distribute marijuana
>Should
Civil code everybody.
A proper ruling wouldn't include "should" it would rule "individuals have the right to grow and distribute marijuana for personal use"
>>312325
AFAIK whenever 'should' appears on a code it means 'unless specific circumstances make it clear it's a bad idea'
>>312325
What makes you think this is the wording of the statute? The original formulation is probably terrible legalese.
>>312337
>unless specific circumstances make it clear it's a bad idea
Okay maybe that's a good point, but given the ruling isn't binding it's still up to politicians to pass legislation that's says people 'should' have the right to possess pot.
gump
>>312924
Forest
>>312344
>legalese
Chins
>>313757
legalese
noun le·gal·ese \ˌlē-gə-ˈlēz, -ˈlēs\
: the language used by lawyers that is difficult for most people to understand : legal jargon
>>313771
tfw I need laymen terms to understand legal talk
>>313792
This is how it is in many European languages.
>tfw German legalese
It's like an entirely different language.
>>313808
Anglo legalese is a lot of Latin, and just random definitive terms like acquire, title, property, this precedent, this statute, etc.
It's not so much legal jargon as it is the definitions of words change
Like title, sort of means ownership but not necessarily control of property
>rights
>>313866
Also in French, titre. Same meaning basically. Probably from the latin titulus.
>>313907
Example my dad did this recently
He bought a condo before construction was completed; then he acquired occupancy (the right to occupy the unit) because the condominium developer transfered title of the unit to my dad
My dad then sold the unit before taking title of the condo to turn a profit, and if he had taken title he would have had to pay capital gains tax
So all the while my dad had the right to live in and sell the condo without actually having title on the properly
>>313958
>because the condominium developer transfered title of the unit to my dad
Was going to transfer title*
>>306965
As a law student in France, I would like to explain to you how strange our system is :
Back under the Ancien Régime, there were local parliaments. Everywhere in France, people had different customs and rules, and local judges, who were independant from the crown (Because they bought their office), could create their own rules and laws. This lead to a lot of problems.
Robespierre once said : "We need to kill common/case law", just to show you how people were fearful of them.
To make sure justice stay independent and under the rule of the state, the French Revolution decided to create two completly separated juridiction order : A civil order, and an administrative order.
The administrative justice is made for every complain against the state's bodies or acts.
Each of the two orders have their own, completly separated judges and agencies. Each have their own supreme courts : The "Cour de cassation" and the "Conseil d'Etat". However, the state always keep them on a tight leash. First, because the Prime Minister of France is also the vice-president of the "Conseil d'Etat". Also, because the National Assembly can always make interpretative laws that immediatly destroys any case law submitted by the two supreme courts.
The "Cour de cassation", the civil/penal supreme court in particular is forbidden to judge on cases. They only judge on facts. You can't call the cassation because you don't agree with what a judge did, simply because you think they broke the law.
>>313978
Yep that's France alright.
Monarchy with slight democratic crust.
See why it didn't go fascist in the 1930s? There wasn't that much to annihilate.
>>311737
Naturally or s4 would not have been drafted at all. However, the effects of s3 are still profound despite the section's qualifications in that it creates a situation where Parliament cannot simply ignore ECHR (in a seriously qualified manner).
>>313866
It depends on the jurisdiction, really. In the UK, the judgments seemingly avoid esoteric Latin terms. It stems from Denning who wanted the judgments to be accessible to the masses.
An extract of his judgment in Beswick v Beswick "Old Peter Beswick was a coal merchant in Eccles, Lancashire. He had no business premises. All he had was a lorry, scales, and weights. He used to take the lorry to the yard of the National Coal Board, where he bagged coal and took it round to his customers in the neighbourhood. His nephew, John Joseph Beswick, helped him in his business. In March 1962, old Peter Beswick and his wife were both over 70. He had had his leg amputated and was not in good health. The nephew was anxious to get hold of the business before the old man died. So they went to a solicitor, Mr. Ashcroft, who drew up an agreement for them."
US judgments seem to be heavily burdened by Latinisms; I suppose it comes down to a desire to seem sophisticated and in compensation for their absolute lack of culture.
>>314036
>US judgments seem to be heavily burdened by Latinisms; I suppose it comes down to a desire to seem sophisticated and in compensation for their absolute lack of culture.
It's because deep down inside the US is a neoclassical republic like France and not a common law polity. Especially with regards to the federal level.
>>314051
How do you suppose it's opposed to common law at the Federal level when a huge portion of US constitutional law really derives from court judgments?
>>314051
Dude USA loves common law. Only people against it are statist democrats and republicans who don't know any better
Gump
http://www.cbc.ca/beta/news/politics/full-text-trudeau-toast-queen-1.3340584
Reminder Canada is a kingdom
>>311691
defining your judicial career by dissenting a lot just means you have minimal impact on jurisprudence. Same with Dyson Heydon.
Gummow is actually the most influential Australian jurist of the last few decades.
>>315088
Not familiar with Australian law
What's a notable precedent?
>>315088
Or it means that everyone else is stupid and in 20 years' time, when everyone has wizened up, your jurisprudence prevails.
>>315142
start with this one
https://en.wikipedia.org/wiki/Amalgamated_Society_of_Engineers_v_Adelaide_Steamship_Co_Ltd
pretty much defined the style of constitutional interpretation that Australia uses.
>>315219
>Coat of arms
Your coat of arms is meme tier m8
At least ours is a quasi copy of the British one
>>314051
>It's because deep down inside the US is a neoclassical republic like France and not a common law polity. Especially with regards to the federal level.
this
>>314071
Easy. Precedents at the SCOTUS level=\=precedents at lower circuit level. SCOTUS rulings are merely a form of legislation, but without legitimacy.
>>315358
>a fucking leaf
coat of arms is irrelevant next to that
>>316446
What an absolutely ridiculous thing to say, and feels somewhat similar to "no true Scotsman".
>>317128
If you read certain SCOTUS rulings (particularly the "hard cases" Dworkin talks about) it's clear that they don't derive precedents from existing rulings but from either interpretations of statutes or quasi-naturalist principles.
It's a trivial thing to say, if anything.
>>316687
Le leaf meme, keep it original
>>317138
>existing rulings but from either interpretations of statutes
Since 1982 when Canada amended the constitution to include a charter of rights most challenges were met with new interpretation of the charter, and now different sections are kind of based on a precedent
Section one is now called the Oakes Test based on the precedent R. v Oakes
The precedent set is what defines the section which is the limitations clause.
There's also R. v Sharpe which is a precedent set under the freedom of expression clause, R. v Collins for unlawful search and seizure and so on
(R. us for Regina meaning Queen)
SCOTUS rulings based on statutes are setting new precedents. Next time that statute is challenged the courts are likely going to look to the precedent rather than the wording
>>317138
I don't think you know how common law works. Lower court judgments do not merely establish profound areas of law (which are followed), especially not in the US, but interpret statutes. The distinction you make is hugely confusing and I cannot fathom why you make it.
Gump
>>306965
>Do supreme court's really have much power in civil law countries ?
Yes. You see, in theory, in the civil law system, the judge is firmly tied to the limits of the law. In practice, is exercising its views on the applicability of the law, without being tied to the jurisprudence.
A few decades ago, half a dozen mindless invented the "neoconstitutionalism". It's the idea - stupid, in my humble opinion - that through abstract principles, it would be possible to identify the foundations of the legal system, even if this contradicts the express text.
I will give an example. In my good country, Brazil, a few years ago, the Supreme Federal Court upheld a lawsuit related to the stable union of homosexual couples. The base was the principle of equality, which was superimposed on constitutional article that defined, with all the letters, that the stable union was "between men and women".
The issue of binding is complicated. There are countries - mine, for example - that tend to adopt a binding force in specific precedents, and even when there is not, tend to follow. It is more a matter of legal sociology. The system is not cohesive by itself, but tries to look like.
>>318725
Sounds like the doctrine of legal realism.
>>318725
>There are countries - mine, for example - that tend to adopt a binding force in specific precedents, and even when there is not, tend to follow.
So the courts pick and choose for future rulings which precedents they want to apply whereas here in Canada a precedent is a precedent unless a higher court changes it
Like the supreme court of Canada could change a precedent set by Ontario superior court
>>318745
Wut
Forest
Bump before bed
Dick Winters.
>>323637
Major Dick Winters
>>323760
2nd Lt. Dick Winters.
>>324430
brig. gen. Dick Winters
gumping
>>307236
>not knowing about common law radicalism
U wot m8
>>326303
quality post
why don't you share some constructive information?
>>326416
Maybe because he's not able to?
>>326691
quality
Idea
I will soon be moving to Italy, how's the system there?
>>327461
I've provided quality, kid. All the good posts in this thread have been mine.
