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How can the discipline of law be objective? (please read)

 
 
aja2015
 
Reply Tue 3 Feb, 2015 11:20 pm
Theoretically speaking, if a legal interpretation is valid, it must remain in force until the law itself is repealed or amended. But, in some jurisdictions, the overruling of earlier decisions is a habit.

Law is said to be whatever the Supreme Court think it is. There seems to be a kernel of truth in this statement given that Supreme Court decisions, no matter how reasonable they may be, can be overruled. There are several accounts where the court’s sudden deviation from its earlier decision is influenced by emotions or politics. We can see this in the manner by which the justices twist the law to absurdity, or the way they reacted when confronted with controversial cases that may tarnish their reputation. The problem is, in most jurisdictions, these decisions become a binding precedent that would inspire faulty interpretations of the law in the future.

Again, wow can the discipline of law tolerate these subjectivities while maintaining academic objectivity at the same time?
What do legal scholars say to defend the objectivity of the discipline of law?
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Type: Question • Score: 3 • Views: 2,325 • Replies: 17
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jespah
 
  1  
Reply Wed 4 Feb, 2015 07:13 am
@aja2015,
aja2015 wrote:

Theoretically speaking, if a legal interpretation is valid, it must remain in force until the law itself is repealed or amended. ...


No. This premise is invalid. Look up stare decisis.
layman
 
  1  
Reply Wed 11 Feb, 2015 01:58 am
@jespah,
I clicked on you link. It says:
Quote:
Stare decisis: Latin for "to stand by things decided." Stare decisis is essentially the doctrine of precedent. Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already issued. Generally, courts will adhere to the previous ruling, though this is not universally true.


Although there are undoubtedly some exceptions, this basically supports what aja said, doesn't it, jespah?
layman
 
  1  
Reply Wed 11 Feb, 2015 02:06 am
@aja2015,
Quote:
The problem is, in most jurisdictions, these decisions become a binding precedent that would inspire faulty interpretations of the law in the future.


That's understating, I think. As I understand it, a supreme court decision is binding on all courts (at least if the issue is a constititutional one--and certainly on all federal courts, whatever the issue).

Only the supreme court can "overrule" the supreme court. The same is true within any given state. Each State has its own Supreme Court which is, well, "supreme." It can't be overruled by any lower courts in that state.

Of course, again unless it is a constitutional matter, legislators can always "overrule" a supreme court by passing a law which supersede it's rulings.
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layman
 
  1  
Reply Wed 11 Feb, 2015 02:09 am
@aja2015,
Quote:
Again, wow can the discipline of law tolerate these subjectivities...


They have no choice about whether or not to "tolerate" subjectivity. Law is a human endeavor, subject to human frailities, like it, or not.
0 Replies
 
jespah
 
  1  
Reply Wed 11 Feb, 2015 07:19 am
@layman,
No; he's saying that laws stay in effect until new statutes take their places (or are passed). Not true with precedent.

PS The US Supreme Court (you are thinking of the one in Washington, DC and not the New York Supreme Court of Kings County, for example) only decides issues of Federal law. They can and do deny jurisdiction all the time. The United States Supreme Court does not rule on matters purely covered by an individual state.
layman
 
  1  
Reply Wed 11 Feb, 2015 10:32 am
@jespah,
Quote:
The United States Supreme Court does not rule on matters purely covered by an individual state.



Yeah, that's what I was trying to say:


Quote:
As I understand it, a supreme court decision is binding on all courts (at least if the issue is a constitutional one--and certainly on all federal courts, whatever the issue).


It kinda goes without saying, I suppose. The U.S. Supreme wouldn't be making a decision to begin with if it was a matter "purely covered by an individual state."
0 Replies
 
layman
 
  1  
Reply Wed 11 Feb, 2015 10:39 am
@jespah,
Quote:
No; he's saying that laws stay in effect until new statutes take their places (or are passed). Not true with precedent.


I thought his complaint was that, even though the doctrine of state decisis exists, the courts were ignoring it, for "political" reasons. He seemed to be quite aware that a court could ignore its own prior rulings (he just said "theoretically speaking").
jespah
 
  1  
Reply Wed 11 Feb, 2015 12:25 pm
@layman,
Possibly. Hard to say about a poster who is long gone.

As for - "it goes without saying ...." re the USSC not ruling on matters involving individual states, it actually doesn't. The USSC routinely deny certiorari on cases. It has been doing so for over 2 centuries.

As for political decisions, I won't deny that they exist. They always have, and they likely will continue to exist until law is 100% decided by computer. Judges in 2015 are people, with passions, prejudices, and squick factors like you and me.
layman
 
  1  
Reply Wed 11 Feb, 2015 01:56 pm
@jespah,
Quote:
The USSC routinely deny certiorari on cases


So are you suggesting that "denying certiorari" is tantamount to "ruling on matters involving individual states?"
0 Replies
 
layman
 
  1  
Reply Wed 11 Feb, 2015 02:00 pm
@jespah,
Quote:
Judges in 2015 are people, with passions, prejudices, and squick factors like you and me.


What is a "squick factor?"

In general, you seem to be agreeing with my post which said:

Quote:
They have no choice about whether or not to "tolerate" subjectivity. Law is a human endeavor, subject to human frailities, like it, or not.

0 Replies
 
Thomas
 
  1  
Reply Wed 11 Feb, 2015 04:38 pm
@aja2015,
aja2015 wrote:
Theoretically speaking, if a legal interpretation is valid, it must remain in force until the law itself is repealed or amended.

That is an overstatement. Stare Decisis is a general policy, but not a universal law.

aja2015 wrote:
Again, wow can the discipline of law tolerate these subjectivities while maintaining academic objectivity at the same time?

1) By acknowledging that stare decisis is not a universal law (see above), and never has been.

2) By acknowledging that America is a democracy. Elections have consequences: "we the people" tend to get the judges we voted for. And with different judges come different judicial philosophies, different interpretations of statutes, and sometimes, overruled precedents. That's not a scandal, that's supposed to happen in a democracy.
Thomas
 
  1  
Reply Wed 11 Feb, 2015 04:43 pm
@layman,
layman wrote:
Although there are undoubtedly some exceptions, this basically supports what aja said, doesn't it, jespah?

No it doesn't. Aja's "it MUST remain in force" (no exceptions mentioned) is different from Cornell's "generally but not universally".
layman
 
  1  
Reply Wed 11 Feb, 2015 04:57 pm
@Thomas,
Quote:
Aja's "it MUST remain in force" (no exceptions mentioned) is different from Cornell's "generally but not universally".


Well, yeah, Thomas, but, as I already pointed out, he also said "theoretically speaking." In "theory" stare decisis says prior decisions are controlling. Certainly not in practice, but, still...

And, of course, he goes on to show he's quite aware that the doctrine is not uniformly applied, so I didn't take him as using "must" in any absolute sense.
0 Replies
 
layman
 
  1  
Reply Wed 11 Feb, 2015 05:01 pm
@Thomas,
Quote:
"we the people" tend to get the judges we voted for


Unless maybe they're given life-time appointments by some executive officer, eh?
Thomas
 
  1  
Reply Wed 11 Feb, 2015 05:07 pm
@layman,
Judges, too, are mortal.
0 Replies
 
easterndebt
 
  1  
Reply Wed 25 Feb, 2015 04:00 am
well; in theory it may happen and its not a regular practice whatsoever...
0 Replies
 
grainsofsand
 
  1  
Reply Fri 27 Feb, 2015 05:28 pm
@aja2015,
politics by arstotle read
0 Replies
 
 

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