Re: Blizzard Sued By South Carolina Inmate
Do you have any instances of a judge issuing a decision that is not an interpretation or clarification of a statute, but is in fact an entirely new law? I can't think of any off the top of my head, but I haven't cracked a legal textbook in 2-3 years and never cracked very many at all. Most of the case law I am familiar with is US Constitutional case law, and by definition these are cases dealing with existing laws and applying the Constitution to them.
Okay, but Dondrei is going to have to stay out of the discussion because he can't be trusted to discuss anything in good faith.
Most of the wrongs one would sue for in civil court are judged according to rules laid out in precedent, that is, case law, not statute. Now, I won't go so far as to argue that there is no statute somewhere specifying the elements of Negligence, but it is generally opinion after opinion going back hundreds of years to England that establishes that someone seeking to recover for damage caused by the negligence of another must show that he was owed a duty by the other, the other breached said duty by failing to exercise reasonable care, that the breach actually caused damages (the existence of damages being an element as well), and that the breach was the proximate cause of the damage. These elements: Duty, Breach, Cause, Damage are not law because they are specified in some statute that some legislature passed. They are law because over the centuries, judges collectively made them up and wrote them down. The state will not force anyone to compensate me for my injuries unless I establish those elements (and counter various affirmative defenses, also established by judicial opinions, not statute) in court. Alternatively, that means if I owe someone a duty (and what constitutes a duty is also not generally determined by statute, but by judicial opinion) and I breach that duty because I did not take reasonable precautions and thereby cause damage to someone, that person can sue me in civil court and when I lose, I will be forced to pay. What I did was against
the law.
Now, it should be quite clear that we are not arguing semantics, that we believe that judges do fundamentally different things. Of course, as with any disagreement, this one depends on a definition. But I've asserted my definition at least 4 times already and no one has questioned it. If we agree on the definition of law(s), and I say judges make them and you say they only interpret them, then that's a legitimate disagreement, not semantics, and one about which I happen to be right.
Edit: You should note that even the Constitution itself grants the independent existence of common law, indeed, it demonstrates that the role of the legislator is often to interpret and clarify judge-made law, and not vice versa. The 7th Amendment guarantees a jury trial only on those issues that would have been tried in the common law courts. When the Bill of Rights was passed, there were two kinds of courts: courts at law and courts in equity. The kinds of cases that would have been brought in equity should not be tried before a jury. Who decided what kinds of cases were at law and in equity? Judges. And the same is true now.
