That's interesting. So even if the judge knows their ruling could be the worst of several options, they're boxed into doing so because it's the law?

Isn't that always the case when you have rule of law and separation of powers? The legislative body comes up with the law; judges just apply it.

E.g. if the law says "murder carries a penalty of minimum 5 years and maximum 30 years imprisonment", then a judge cannot give a sentence of 4 year or of 40 years, even if they personally believe this to be a "better" sentence.

My understanding of the US system design is that the law as defined by the legislative body is in a way "minimalistic" (and even more so at the federal level), and jurisprudence augments it with the details.

Taking your example, what constitutes murder and minimum and maximum penalty are defined in "broad strokes", and the judge gets to define "in this specific case that person is guilty in a way where they should be sentenced to X years", and that becomes law (IIUC scoped to their jurisdiction), progressively refining and tuning the whole system, because the next judge faced with a similar enough case would be bound by it. The lawyer game is then to argue whether the current case is close enough to a previous one for the previous ruling to match (and thus tying the judge's hands). A thoughtful US judge would consider both the case at hand and the implications of being law-generating when issuing a ruling.

IANAL but no, the US claim to minimalism is just branding.

The largest jurisdiction like the Federal judiciary, for example, have the Federal Sentencing Guidelines which have a strict point system for criminal sentencing where judges have little discretion due to a Federal “tough on crime” wave.

It really depends on the subfield of law and the vagueness of past legislation.

> My understanding of the US system design is that the law as defined by the legislative body is in a way "minimalistic" (and even more so at the federal level), and jurisprudence augments it with the details.

Which really makes me wonder, how the hell to even professionals keep track of that? For regular stuff you literally can have thousands of relevant cases going back centuries as "precedent" to build on.

There are tools like LexisNexis and FindLaw -- professional search engines to help with finding relevant case law.

Yes. In such cases a reasonable judge ultimately aim to bring justice but can only do so within the confines of law. I recall talking to a few who had to rule in terrible ways (e.g remove a child from one's parent custody because of known but obsolete and largely unrelated past records and granting exclusive rights to the other who was known abusive but had only hearsay to back it up) and took every possible course of action to mitigate and make it less unjust but had their hands tied. They were all experiencing unfathomable psychological distress.

Not really, that description, and the one provided by the user you responded to is a bit disingenuous. Judges have the option of going against prior rulings all the time, and they do it all the time. But it does usually require some context from the judge for why a different ruling was carried out in this instance, because if they’re basically saying the previous judge’s decision was wrong, that calls into question if that prior case actually found real justice. Additionally, only higher courts (not just small local ones) set precedents for their rulings.

What do you mean the worst of several options?

The law is the law, if it's unfair it gets changed.

Having the judge "making it up" as he goes, and then another judge using that sentence 120 years later as precedent like in american courts sounds insane

The law, as it's written down, often fails to match closely the particular circumstances of a specific case. Maybe it never gives an exact match. So judges and juries have to interpret the law. That's the reality, whatever legal system you have.

"Precedent" is a way of saving the time of courts and lawyers, by not having to argue the same details every time they come up. And it's not as if every court judgement becomes a precedent; only higher courts can set precedents, and they can only be overturned by higher courts still.

I think this is a reasonable way of approaching justice.

All of that is easy to contemplate. You have extenuating and aggravating circumstances (things that make the situation worse or better for the defendant)

And on top of that you have a window for sentencing. So if murder is lets say 4-20 years in jail. And you were drunk, that makes it worse, but it was not premeditated, and this and that it all adds up and you might 6 years or you might get 18 depending on the circumstances.

This also allows the law to be rewritten from scratch instead of being based on whatever higher court thought in the 1800s.

> You have extenuating and aggravating circumstances

You do; but that's not actually what I was thinking about. That's just about sentencing, and here (the UK) sentencing doesn't fall within the purview of precedent; there are sentencing guidelines set by senior members of the judiciary.

I was thinking of actual points of law, such as what constitutes unreasonable behaviour, or whether possession of some quantity X of illegal drugs is conclusive evidence of intent to supply.

> whatever higher court thought in the 1800s

It's open to higher courts to overturn precedents, if they've become outdated to the extent they no longer make sense. The very old precedents are presumably precedents that make so much sense that nobody has successfully challenged them. If someone runs into an adverse judgement based on an ancient precedent that is unsupportable, no doubt there's some barrister that would like to make their case (and their reputation) at appeal, by overturning it.

> I was thinking of actual points of law, such as what constitutes unreasonable behaviour, or whether possession of some quantity X of illegal drugs is conclusive evidence of intent to supply.

In Roman judiciary those are usually part of the law as written. So instead of having a law about "unresonable behaviour", you have a law explicitely stating that "making noise above X db at night is illegal" or "drinking in the street is illegal" etc. So the idea of what constitutes intent to supply is based on quantity, anything below X grams is personal use etc.

And you can always add aggravating circumstances that "promote" a crime, so you can have such thing as intent to supply counts having drugs and X amount of money on you, or X amount of drugs and leaflets saying you sell etc. In other words you can explicitely state the kind of things judiciary precedent would probably take into account ahead of time.

> The very old precedents are presumably precedents that make so much sense that nobody has successfully challenged them.

Or the higher courts have not taken a case that challanges them. I am not sure about the UK but in the US, the supreme court pretty much picks their cases which means they can arguably allow for dangerous precedent to stay as long as needed by avoiding cases they know would present a resonable chance of overturning. Or equally dangerous oversee cases that maliciously try to overturn positive precedent.

Also the process is slow, tedious and many times expensive. Going back to Townshed v Townshed, it is a case where a will was overturned because a man freed his slaves and his family said that was proof he was mentally unwell to change his will. This, again, is still being cited when overturning wills or when contesting changes late in life. I cannot possibly imagine a more obviously outdated precedent than a judge thinking freeing slaves means you are insane, and yet...

> In Roman judiciary those are usually part of the law as written.

This is increasingly the case as far as UK criminal law is concerned, I think; also to an increasing extent in matters of marriage and children.

But in family law, there isn't much room for talking about precedent, because for many decades Family Court proceedings have been strictly secret. It's now opening up, slowly.

Contract and property law are rooted in custom, i.e. common law; it seems to me that it would be impossible to write down a contract law that didn't have an infinite number of cracks and corner-cases. Do judiciaries that don't have precedent have to re-litigate all those corner-cases from scratch every time?

What you describe does not match reality.

Townshend v Townshend is a ruling from 1848 still being quoted.

Citing Slavery Project did an analysis and found 18% of all current cases in courts either quote slavery rulings or are less than 2 steps removed (quote a ruling that quotes the slavery ruling).

Not sure how that's relevant.

> The law is the law, if it's unfair it gets changed.

That's the part that doesn't match reality.

> That's the part that doesn't match reality.

I mean Spain recently had a big case related to a group sexual assault. Society was up in arms about the ruling (minimum sentence was 1 year, max was like 6)

So the law was amended and now sexual violence has a maximum sentence of 15 years which is more in line with other european countries.

Judges are not there to come up with the law, only to execute it.

In the USA at least, it's the executive that executes laws. Judges interpret them.

That's not what I asked, nor is it what I implied.

It’s not clear what exactly you were asking or how it relates to the post you were replying to.