(Please, all you who think the living constitution is a communist plot and activist judges are traitors, go piss in your own thread. I am not interested in rants. I am trying to understand something here.)
As I understand it, common law treats legislative statutes as mere guidance, with details worked out over years of trials and appeals, with judges writing the actual nuanced law. The reasoning is that legislators cannot anticipate every possible situation, so practical useful law requires the flexibility of trial and error.
There's a certain practical logic to that. Bridges and buildings aren't designed from scratch, but by experienced engineers using practical books full of tables and equations worked out over the ages by trial and error. Every exploding steam boiler led to new standards for materials and construction. Building codes are more the result of fires and earthquakes showing what worked and didn't than theoretical studies.
Is this where the idea of a living constitution came from, that the constitution is merely the theoretical framework, just as statues from the legislature are rough and incomplete, and that it is up to judges, as always, to write the real practical standards thru day to day trials and appeals?
As I understand it, common law treats legislative statutes as mere guidance, with details worked out over years of trials and appeals, with judges writing the actual nuanced law. The reasoning is that legislators cannot anticipate every possible situation, so practical useful law requires the flexibility of trial and error.
There's a certain practical logic to that. Bridges and buildings aren't designed from scratch, but by experienced engineers using practical books full of tables and equations worked out over the ages by trial and error. Every exploding steam boiler led to new standards for materials and construction. Building codes are more the result of fires and earthquakes showing what worked and didn't than theoretical studies.
Is this where the idea of a living constitution came from, that the constitution is merely the theoretical framework, just as statues from the legislature are rough and incomplete, and that it is up to judges, as always, to write the real practical standards thru day to day trials and appeals?
Comment