Congruence between official Action and Declared Rule

  • Most complex of all desiderate.  Sponsored by Dentist Calgary NW
  • This congruence can be destroyed in many ways: mistaken interpretation, inaccessibility of the law, lack of insight into what is required to maintain the integrity of a legal system, bribery, prejudice, indifference, stupidity, and drive towards personal power.
  • Thus, procedure to maintain congruence takes on many a form.
    • Umbrella of “procedural due process”, standing to raise constitutional issues.
  • In US, judges entrusted with safeguarding this, has advantages, but also disadvantages. It makes correction of abuses dependent of willingness and financial ability of the affected party to take his case to litigation.
  • Where law is judge made, though lower courts can impart congruence between law and official action, supreme court cannot because it makes the law. ..but not, because can make tune undanceable, inter alia, frequent changes, retroactivity, etc.
  • Most subtle issue: interpretation.  What are the Principles of interp.?  Best general answer I know is
    • When Baros of the Exchequer met in 1584:
      • 1. What as common law before making of act?
      • 2. what was mischief and defect for which common law did not provide_
      • 3. what remedy the Plt hath resolved and appointed to cure the disease of commonwealth?
      • 4. The tru reason of the remedy; and then the office of all Judges is always to make such construction as shall suppress the mischief and advance the remedy.
    • Fuller thinks it should have 5th point “How would those who must guide themselves by its words reasonable understand the intent of the act, for the law must not become a snare for those who cannot know the reason for it as fully as do the Judges.”