Hypothetical: what do you think would happen if, in a Western country with a more or less “average” culture of ligitation—whether using trial by jury, by judge or a mix of both—all courts were allowed to judge not just the interpretation, applicability, spirit, etc, but also the constitutional merit of any law in every case (without any decision below the Supreme Court becoming precedent)?
Say, someone is arrested and brought to trial for illegal possession of firearms, but the judge just decides that the country’s Constitution allows anyone to own any weapons they want, so ve just releases the suspect and gives them some notice that they can’t be sued a second time on the same charges. I’m not saying it’s a good idea; my knowledge of the law is limited to a few novels by John Grisham. I’m just asking your opinion: would things be very horrible if every court was its own authority on constitutional matters? (Of course, I realise that none of the unitary, control-hungry modern states would ever willingly agree to such decentralization.)
This would mess horribly with jurisprudence constante, the principle that the legal system must above all be predictable, so that people can execute contracts or choose behaviors knowing the legal implications. But since we are already, despite our claims to the otherwise, ok with using things like retroactive laws, how problematic this would be in practice is hard to ascertain.
I know about that principle, yeah—even EY mentioned it around here somewhere—but in practice the modern judiciary branch (to my eye) is very chaotic and even corrupt anyway (enforcement of copyright is, in practice, enforcement of insanity, mass murderers can more or less walk away if their fans are threatening enough, the policy towards juvenile offenders seems to be designed for destroying their lives and making them more dangerous, etc, etc), so indeed it’s largely only predictable in its consistent badness. (That applies to more or less all modern nations with reasonably independent courts.)
If we’ve got to have such chaos—if installing a formal tyrant, etc are our only alternatives—at least it should be a chaos made of better, more commonsensical decisions; today’s hierarchy of courts filters away common sense.
Hypothetical: what do you think would happen if, in a Western country with a more or less “average” culture of ligitation—whether using trial by jury, by judge or a mix of both—all courts were allowed to judge not just the interpretation, applicability, spirit, etc, but also the constitutional merit of any law in every case (without any decision below the Supreme Court becoming precedent)?
Say, someone is arrested and brought to trial for illegal possession of firearms, but the judge just decides that the country’s Constitution allows anyone to own any weapons they want, so ve just releases the suspect and gives them some notice that they can’t be sued a second time on the same charges. I’m not saying it’s a good idea; my knowledge of the law is limited to a few novels by John Grisham. I’m just asking your opinion: would things be very horrible if every court was its own authority on constitutional matters? (Of course, I realise that none of the unitary, control-hungry modern states would ever willingly agree to such decentralization.)
This would mess horribly with jurisprudence constante, the principle that the legal system must above all be predictable, so that people can execute contracts or choose behaviors knowing the legal implications. But since we are already, despite our claims to the otherwise, ok with using things like retroactive laws, how problematic this would be in practice is hard to ascertain.
I know about that principle, yeah—even EY mentioned it around here somewhere—but in practice the modern judiciary branch (to my eye) is very chaotic and even corrupt anyway (enforcement of copyright is, in practice, enforcement of insanity, mass murderers can more or less walk away if their fans are threatening enough, the policy towards juvenile offenders seems to be designed for destroying their lives and making them more dangerous, etc, etc), so indeed it’s largely only predictable in its consistent badness. (That applies to more or less all modern nations with reasonably independent courts.)
If we’ve got to have such chaos—if installing a formal tyrant, etc are our only alternatives—at least it should be a chaos made of better, more commonsensical decisions; today’s hierarchy of courts filters away common sense.