On 10/17/07, charles.r.matthews(a)ntlworld.com <
charles.r.matthews(a)ntlworld.com> wrote:
"John Lee" wrote
And judges don't make law. Let's be
honest, Charles - judges say they
don't
make law, the arbcom says it doesn't make
policy. In reality, both do.
It's
just that the law isn't codified as a
separate law - it is enshrined in
the
precedent set.
AC cases are one-offs. They really are. They are supposed to fix up
situations by a mixture of equity and safeguarding the Wikipedia mission.
There is no precedent set by a remedy. Principles are pieces of reasoning
drawing on written policy and other things, and are mainly there to connect
general understandings with the bottom line.
Policy is set by consensus, not by edict. It just so happens that there is
usually consensus - or an attempt to form consensus - around certain arbcom
edicts, in which case the arbcom has clearly (but probably unintentionally)
set policy.
If this were not so, the Supreme Court of the US would
probably not be as powerful as it is today, and
we wouldn't even have
this
case (after all, proponents of BADSITES-ish
policies often cite a
particular
arbcom case when arguing their point).
I'm not American so I don't think along the same lines at all. Judge-made
law can be incorporated into legislation, or swept away by it.
Absolutely. But the common law is built entirely around judge-made
decisions, so that's an even more clear-cut example of judge-made
legislation. I think there are actually good parallels here because just as
Parliament can either incorporate the common law into statute law or reject
it, the community can incorporate Arbcom interpretations of policy as
binding policy themselves. The Arbcom has made policy; it's not policy that
necessarily sticks (as I said above, some edicts are more widely-adopted
than others), but it's still policy laid down by the Arbcom which the
community decides to accept or reject.
Johnleemk