To some extent I agree with you, but at the same time it is not the purpose of the court to create law. It is their job to interpret. Lawyers read and understand. Evolution of the law (which involves creating new portions of the law to cover previously created portions which are considered lacking), is the responsibility of the legislative branch (in that case, Congress).
But the common law is evolving. That's why we review previous cases and cite precedent. Because we assume the interpretation of the law will change as soon as it comes into contact with facts. There is a point where Congress needs to get involved, but until they choose to do so, the court system is where the law happens. Sometimes that includes evolution, but I suppose it's up to the appeals system to draw that line.
I've noticed a trend where technology-inclined people take a very strict, autistic approach to the law. They tend to view the law as being analogous to source code in that there is no room for interpretation, intent or spirit behind what's codified.
I think this has manifested at its peak with Ethereum.
Not at all. If the existing law is interpreted by the courts to apply to digital communications then it does. Congress a has the ability to remove interpretations by specification.
My original comment said that courts could interpret law... I'm not sure what you're getting at. Yes, including intention. US courts do it all the time. It's called the Constitution.
>evolution of the law (which involves creating new portions of the law to cover previously created portions which are considered lacking)
And argue that electronic privacy vis-a-vis wiretapping laws is creating a new portion of the law to cover previously created portions which are considered lacking. We can quibble about definitions, but that strikes me as very much in the area of "evolution".
I think defining "evolution" and "create" are the real sticking points in this argument. That get's down to splitting hairs. Though I will say that I do believe that everyone in this thread does have sound arguments given their definition of those two words.
There's one unifying feature of all common law legal systems - judges will publicly almost always proclaim they do not create law, largely because simple prima facie interpretations of most western constitutions say "the legislature makes the laws, the court enforces them", and the existence of judge made law has always had an uneasy relationship with this.
The reality in Common Law legal systems is nothing like this, and judge made law through interpretation and application of precedent is a very real thing, even in the USA. As a particularly blunt example, in some parts of the UK such as Scotland, the traditional common law crimes such as murder/theft etc aren't even defined in primary legislation ("laws"), and exist solely as judge made and applied creations through decades of precedent. Even where there exists primary legislation, the scope of judicial interpretation gives a great deal of freedom to judges to establish precedents that the drafters might not have foreseen or intended.
Heck even the definition of the term "Common Law" is normally interpreted to mean "Case Law" as developed by judges.
I'm not trying to be condescending, but you should probably include a US centric example when asserting how the US works. The Scottish example is irrelevant, as it applies to Scotland, not the US. Also, if you try to relate Scotland and the US under the umbrella of the term "Common Law", but then say that that term has it's own interpretive meaning, you've loosened the association to the point where you can't strictly say that the Scottish and US systems are the same...
Also, as I've seen in other comments, we're going to get on the merry-go-round of defining "create law".
