re: Don't legislate me

jimmy — Fri, 06 Feb 2009 15:40:33 GMT

With reference to point number 1, I think history speaks for itself (in case you're doubting that such a system is possible - it's not only possible but it succeeded magnificently). Certainly there were substandard decisions made by individual judges. However where a decision was made that either plaintiff or defendant was not happy with there was always the possibility of appealing the decision and taking it to a higher court. The motivations for good performance on the part of lawyers is obvious (they require the patronage of future customers). Primarily I believe that the judges were motivated by peer review and the aspiration to advance their careers (which was not possible if their peers considered that they were not good judges).

With regard to point number 2, judges are only allowed to make decisions on the cases that are brought before them. They cannot, if they decide they have a bone to pick with Mr XYZ or the ABC industry, wander off and start issuing commands to them.

Certainly it may be the case that judges "happen" to be making decisions on cases in which their personal views influence their decision. However this must come about by accident. This is precisely the opposite situation to that which we find with legislation where the law makers are always (without exception) making laws relating to issues upon which they are biased... so there can be little doubt that where it is possible to avoid legislation this is preferable.

Leoni covers your questions is much much much greater detail than my short introduction above though. My main goal was to try to get people interested in his work and I'd thoroughly recommend you read Freedom and the Law if the article sparked your interest.

re: Don't legislate me

dbooksta — Fri, 06 Feb 2009 14:19:47 GMT

Thank you for a helpful introduction to the theory of Common Law. While compelling in principle, I am left wondering how two practical perils are addressed:

1. How are "highly skilled lawyers and judges" incentivized to participate in and maintain the system of Common Law? What mechanism ensures that the system is not corrupted by patronage or mediocrity?

2. The judiciary of recent generations has introduced us to the concept of "judicial activism," wherein judges eager to impose their philosophy on the polity do so without little regard to the restraint and deference they are supposed to show in their capacity as "judge." We often see them doing so in spite of the expressed will of the majority (through referenda or through the legislature). It seems that, lacking our current government mechanisms for popular rule-making, the Common Law system would be vulnerable to even greater judicial activism. Do you agree? Is it clear that this is preferable to the existing system where (in principle) the judges restrain themselves to making judgements in accordance with the expressed will of the people?