I’m not aware of there being anyplace in the US that specifically outlaws SFIACT. To my knowledge, it exists only in case law as an example of prohibitable speech . You are therefore incorrect in saying that I was asking “why laws against it were passed in the first place”.
As to your belief that the opinion of a Supreme Court justice on whether enforcing such a law would violate the First Amendment is “irrelevant”, well, I think that needs no comment.
And before you come in here and try to nitpick words in order to distract from the general worthlessness of your argument, I meant to say why.
…and “wouldn’t violate.” Duh.
Roe v. Wade, anyone? Brown v. Board of Education? These were changes to primary legislation, were they?
Tom, you’re right in the sense that both of these cases involved a certain amount of legislative decision-making (the former in its “trimester” formulation, the latter in the order to desegregate). It is, however, essentially correct that the function of the judicial branch is to interpret the laws rather than make them, and the Court has (to some extent justifiably) been criticized when it has overstepped those bounds, particularly in Roe.
What isn’t correct is that the judicial branch can’t decide if something is illegal. Declaring a law unconstitutional is, by definition, declaring it illegal. Of course there are still people who argue that the Constitution doesn’t give the Supreme Court the right to do that either, but that’s a whole 'nother can of worms…
ruadh,
Agreed, but the distinction between interpreting the law and making it is often a nice one. After all, if the law (or any text) were self-interpreting, we wouldn’t need lawyers or judges at all.
But the reason I took issue with TR (apart from the fact that he’s a self-important tosser) was that he said that the judicial branch does not decide “what is illegal”, which is manifestly false. I’m probably on thin ice with the US examples since IANAA, but the law of negligence in England, for example, is almost entirely judge-made.
Well, I’m not really comfortable drawing comparisons with English law as I don’t know enough about it (the wankers-that-be wouldn’t let me take law courses when I did my term in London), but I assume what you’re talking about is case law, which I mentioned briefly earlier. Theoretically, that’s supposed to be the courts just deciding how to apply an existing law to a given situation. You’re right that it’s murky in practice, though the issue seems to come up mainly when the court makes a decision the right wing doesn’t like.
Since your question was based on false premises, it must mean something other than what it manifestly means? The question “why is this illegal” means “why is this illegal?”, not “why has a justice said that, hypothetically speaking, if this were illegal, that would be constitutional?” Declaring something “prohibitable speech” is very different from declaring it “prohibited speech”.
It is irrelevant to this question.
Not in the sense that SFIACT is illegal.
… and this applies to the UK in which particular case? …
For fucks sake Ryan wrap it up will you.
You have an opinion on this when the best judicial minds in the UK have had their say and made legal ruling on the basis of their enquiry.
You cannot possibly have had access to the wealth of information they have, the witness testimony, the video footage, the cultural understanding, and I seriously doubt that you studied law at either Oxford or Cambridge or had a minimum of around 40 years legal experience in a high flying jurisdictional career.
Yet still these people ruled against the police.
Pray tell me what unique and insightful contributions are there that you can make that illuminate the events at Hillsborough that have perchance been missed by such blindminded dunderheads ?
Case law and common law, yes. It’s generally referred to as “judge-made law” in England and I assumed that was the same in the US. Am I wrong?
Theoretically it is, but even a strict construction is still a construction and deciding how to apply the law entails deciding what the law is. There’s a huge body of English law (including, as I said, the entire law of negligence) which has been made by the courts, rather than by Parliament. Again, I think it may be different in the States.
I assume you’re taking about the US, since most of the examples I can think of in English law are kind of value-neutral (or at least neutral as to right- and left-wing). One of the first important negligence cases, for example, involved the finding of a snail in a ginger beer bottle and the question of whether the manufacturer owed the consumer a duty of care (Donoghue v. Stevenson). Hardly the kind of thing that would have Tony Benn and Norman Tebbit at each others’ throats.
To the best of my knowledge, issues like abortion and equal opportunities have tended to be Parliament-led in the UK. It’s still a pretty fundamental point that Parliament can do what it likes (Art. 9 of the Bill of Rights), so there’s been fewer occasions when the courts have produced politically controversial rulings.
casdave,
Complete and utter sense as usual. I think we’ve deviated so far from the discussion of Hillsborough that it’s not worth pursuing anymore. The Ryan is clearly totally up his own arse and not susceptible to reason. His “I am offended by your referring to murderers as ‘innocent victims’” is still one of the most offensive things I have ever read on these boards, closely followed by Opal’s “kindergarten” comment, but that’s life. Why let ignorance get in the way of an inflammatory opinion?
I don’t want to be seen to be backing out of the more general discussion about judge-made law, so maybe somebody could e-mail me if they think it’s worth starting a separate thread about (which I acknowledge it probably isn’t).
I’ve just re-read my last post and I think it might come across as mildly vituperative, which I did not intend. I only intended to address and clarify some of the points ruadh made in response to my post about judge-made law.
For the avoidance of doubt: I agree with ruadh (subject to what I said in my previous post); I agree with casdave; The Ryan is a complete tit.
What was I saying earlier about “before you come in here and try to nitpick words in order to distract from the general worthlessness of your argument”? :rolleyes:
TomH, I agree this isn’t really the place to continue this discussion, but I’m not sure if it’s worth opening another thread (and I’m not sure where to put one anyway). I’ll try to address your points quickly and if you’re inspired to continue, I’ll let you decide where the new thread goes 
I’ve never heard that phrase used in the US, probably because we still hold to the idea that judges don’t make law. If the phrase was used it would probably, again, be used in a critical sense.
In the US there’s absolutely no debate that the Supreme Court, specifically the Warren Court, was at the forefront of social change from the mid-1950s to early-1970s. Desegregation, birth control, abortion, porn, political dissent, you name it - the Court’s decisions in that era had an enormous impact on the laws in those areas. Conservatives argue that the Court was actually making new laws rather than interpreting the ones already on the books - they call it “judicial activism”. As I said earlier, in some cases they have something of a point, but in most cases it seems to me to be mainly an excuse to bitch about decisions they don’t like. You didn’t hear them lining up to criticize the Court’s activism in the Florida election case, for example.
Let this post DIE already, will ya???
If it bothers you that much, ObviousGuy, why the hell are you reading it? Sheesh.
**TomH **:
The political system in America can be pretty confusing to outsiders that don’t understand its assumptions. The profound American distrust of government has formed a government that resists change. An ordinary law needs to be approved by both houses of the legislature and the President or 2/3 of each house. A constitutional amendment needs the approval of 2/3 in each house plus 3/4 of the states, basically even a proposition with only slight opposition will fail.
This resistance to change ensures that we are still strongly in the grip of what the Aussies call “The Dead Hand of the Founders”. Judges interpret that hand and thus are much more powerful than the jurists you are familiar with. My understanding is that Parliament can simply overrule any judicial fiat. Here in America our elected officials would have to jump through the hoops. Since it is so difficult to get the actual words of the law changed Americans learned to turn to the courts to have the meaning of those words changed. People of all political stripes decry “legislation from the bench” ( usually when they don’t like the decision handed down ) but many fail to realize that if that “legislation” were removed then our government would be too antiquated and limited to govern effectively. Of course, that is exactly what many strict constructionist desire. Their private interests would be even more profitable without public interference. “And I would have gotten away with it too, if it weren’t for those meddling kids!”
This failure to legislate has led to a large body of “judge-made law” ( I was also unfamiliar with this term ). The very process of judicial review was not carefully laid by the legislature but rather was defined by the courts themselves in Marbury v Madison ( 1803 ).
We are pious toward our history in order to be cynical toward our government - Garry Wills