human909 wrote:London Boy wrote:The politicians DECIDE the legal landscape.
Again you leave me in shock with this response.
As I understand it you are a lawyer or otherwise legally trained? If so I struggle to comprehend how you can hold this view. The legal lanscape is made up of decades of precedents. Decades of legislation. And can your really tell me with a straight face that legal professionals don't play a significant if not dominate role?
Yes, a lawyer. I don't do criminal law, mind, so there is that qualification.
The law is made up partly of precedents but, as I said, lawyers' influence has been declining for some time. And if you consider 'influence' to mean that legally trained professionals draft the laws you'd be right, but they don't determine the content of those laws. That is for the politicians. The lawyers job is to speak the language and to tell the politicians how the new law interacts with existing laws. It's a bit like an accountant's role in setting out the tax rules.
One thing you might also note is the use of privative clauses. These are sections of acts designed specifically to keep the courts out of things. The Migration Act relies intensely on those - how else do you think the pollies get away with what they do on Nauru, etc?
Whatever you make of judge-made law, it can be superseded by statute at any time the parliament decides to do it. What you should notice is the statute book becoming larger as what used to be judge-made law is codified. That's a way of saying that, in the old days, judges had a lot more scope to set out the law, but not these days. Parliament is ever more tightly defining what the law is, leaving the judges with a lot less to do and a lot less say. Also think about the interpretation acts, which are highly detailed rules, made by parliament, about how the courts must interpret statute. No discretion there either. See also, for example, sentencing policy, which determines what the judge can and can't do, and it is set by the politicians. Remember that when you complain about lenient sentences.
Keep in mind also that we're discussing a case about a bloke being found not guilty of killing another man. The lawyer made a successful argument and the jury (which, please note, does not contain any lawyers) made its decision. Oddly enough, you'd be more likely to get a guilty verdict in a judge-only trial. More focus on law and less on social expectations.
human909 wrote:London Boy wrote:I didn't get your views on financial advisors, bankers, companies and so on. Did you decide that they were, after all, not relevant?
No they are quite relevant but since that analogy didn't get traction with you then I didn't continue with it. But if you wanted to inform yourself about rent-seeking then you are feel free to educate yourself on that.
I know what rent-seeking is. It's what bankers do. Financiers. Any large corporate with an 'entertainment' budget. I think equating bankers and lawyers misses the point. That's why it didn't get traction.
human909 wrote:fat and old wrote:In no way at all am I a lawyer, or even a lawyers pencil, I am struggling to understand how a precedent or interpretation is perceived to be “making a/the law”? Making a decision based on a law I can see. Following a precedent when defending/prosecuting someone for breaking a law I can see. But do these mean that a new law is enacted?
A legitimate question for a layman to the legal profession.
https://en.wikipedia.org/wiki/Common_law
Reading the first sentence probably would suffice.
Stare decisis. It means that if a law is applied to similar facts, the decision made in later proceedings should be consistent with previous decisions of the same or superior court.
However, you need to be careful, because if a law changes then that body of 'judge-made' law disappears. The most reliable precedent deals with e.g. constitutional issues, where the written law changes a lot less often. Think Engineer's Case, for example. Everything else is up for grabs.
This is for common law countries only. Civil law countries operate on the basis of more generalised doctrine, so is less predictable but in a lot of ways more sensible.
However, we come back to the key point which is that a lawyer acts for the client and the client alone, and is obliged to use all the available tricks. That includes playing on the jury's subjective hopes and fears. And it was a jury that returned the not guilty verdict, not the lawyer or the judge.