zlacker

IMHO our system of law cares more about precedent than almost anything else. The first case addressing a situation sets the bar, which is backwards. The most important decisions are made when we, collectively, know least about the topic at hand.

>>primer+(OP)
As the saying goes, it’s a “legal” system rather than a Justice system.

So long as you follow arcane procedure and precedent, the deeper facts don’t matter and don’t get much respect from the system.

>>primer+(OP)
And criminal law and procedure doesn’t care about precedent as much as it cares about finality. Which is really backwards.

>>primer+(OP)
Common law is only one basis of law and it's almost exclusively an English thing. In England, alternative bases of law were associated with horrific abuses of power. In response the Anglosphere has adopted a sort of extreme legal conservatism: anything other than inviolable natural rights decided on the basis of "we've always done it this way" is not freedom, but privilege[0]. Every acquittal binds the law, ideally forever. This is the same form of law that gives us things like "human rights are what you afford your worst enemy", which is contradictory[1], but sounds like a really strong bulwark against tyranny.

Outside of the Anglosphere judges are free to ignore precedent, which they call "jurisprudence". This is a tradeoff: you get justice "in the moment" in exchange for less future surety about how the legal system will react. The legal system might just decide that you doing the exact same thing someone else did and got away with is now illegal.

My personal opinion is that any basis of law can be used for tyranny, and that common law and inviolable rights are less protective than we have been propagandized to think. Even common law legal systems occasionally overturn precedent if they feel like it - remember when anti-abortion laws were a violation of the 4th Amendment until they weren't?

[0] This even extends to the word "franchise", which means "French-ize", as in to be given freedoms by being turned into a Frenchman

[1] What if your enemy seeks to take away your rights?

>>primer+(OP)
I think that may have been true in the past but recent cases in front of the SCOTUS is setting precedent that stare decisis (and other forms of precedence) doesn't matter much any longer in the US court system.