Looking things from a civil law system, we can often find the common law practices perhaps quirky and downright incomprehensible. This holds true even when we remember that the foundation of the continental civil law systems of Europe builds on the same Roman laws revived as the common law system of Britain – and its somewhat unruly offspring in the United States. And further, this doesn’t help us much despite the fact that Roman laws were built originally on the clever analogies construed from the preceding cases – the very blueprint of common law heart.
This confusion built upon the fork of the systems after the revival of Roman law is developed further when we look into the separation of powers to three; A theory first given prenatal care by English John Locke and then midwifed by French Montesquieu but first given birth over the vast sea by the United States in her own struggle into existence. The theory has been considered quintessential to the rule of law and guarded more or less strictly across the Northern Atlantic. But it can be argued the very womb that gave it practical life has started to mutate it from the very birth through not only muddying the distinction between legislative and judicial powers on the matter of addressing holes in the legislation but also by enabling the fourth actor into the process of creation of justice.
A big distinction between common law and civil law systems is how to handle situations where there is no law on the matter at hand. For a civil law system, this creates a dilemma as it expects a statute, legislation from the legislative branch to rely on and interpret by the judicial branch. The line is relatively clear until we run into a situation where the legislative branch has not yet acted – and this is where the common law shines with its approach of organically interpreting the situation based on analogously equal situations to create new law not yet in existence to give justice even in the absence of law to rely on. For this and Lincoln’s famous notion of “government of the people, by the people, for the people”, it is easy to see the people, the Average Joe as the instigator of new law with their practical need for justice. But do they have the ever-so important constitutional right for this immense power?
For the separation of powers, neither the theory of Montesquieu or the birth certificate known as Constitution addresses the origin of justice exhaustively. It can be read in both implied to stem from the life of people, but both stay silent as explicit statements. Perhaps it could be seen as irrelevant to core of both, but looking for the justification of people taking an active role in forming legislation does put forward a question on blurring the line between judicial and legislative powers.
From the respondent’s brief in 303 Creative LLC v. Elenis 600 U.S. ___ (2023) (Slip Opinion) (303 Case) we can see the state stressing this as practical questions; Does the petitioner have a standing? Is the case ripe enough to be addressed by the judicial branch? Would the judicial branch overreach in the matter and deprive both the legislative branch its constitutional power to set the law and the executive branch to bring it to life? The last question is not put forth for the Court as such, but the first two imply it on the construction of the ripeness doctrine itself.
Both the standing and the ripeness doctrines of the United States legal system have been construed through the jurisprudence of courts and not by legislators through statutes. The construction of both stems directly from the Constitution – even when neither is addressed in detail by the Founding Fathers. The ripeness of a case is, in fact, founded on the use of two words in Article III, section 2. “The judicial Power shall extend to all Cases (…) to Controversies”, is the foundation of what allows the judicial branch to decide its own limits of judicial power. “Cases” and “Controversies” are the two crucial words where Supreme Court of the United States (Court) has founded its claim on when it can rule on justice when the legislative branch has refrained from using its power to set the rules according to the opinion of the Court itself. Thomas Jefferson was surely correct in his assessment when protesting United States v. Burr, 25 F. Cas. 30 (No. 14,692d) (CC Va. 1807) of the judicial branch being the most jealous of their independence among the branches of government.
The heart of a common law system is living institution of people’s need for justice and judicial branch answering this call, pumping new life to old law with new interpretation. But when the judicial system allows people to bring cases directly to court without certainty on legislative and executive powers input prior to judicial consideration, the heart is allowed to pump without figurative lungs providing oxygen and nervous systems guiding where the blood flows. Can the good will of people bringing the case be trusted to represent the will of the people intended in the word of Constitution – or could it include a political virus seeking to usurp the system with its own agenda?
In 303 Case the state challenges the standing of the petitioner arguing that petitioner has not in fact even offered services the petitioner uses as a vehicle for her legal agenda. Further, the state argues the case is not ripe because there has not been executive history of the statute being used in the manner she claims would lead to self-censorship and thus she cannot claim an injunction without credible threat of violating her first amendment right to free speech by compelling her speech. In their challenge to standing and ripeness, the state does not directly argue on the basis of precedents that gave birth to the doctrines but instead to the more recent and more closely analogous cases, which creates a path for the justice.
From the Constitution to precedent, from the precedent to governing case and from there to a singular case through interpretation. Applying the hermeneutic circle seems to connect us again to similar mechanic of finding the grand truth of justice as in civil law systems, but the question remains, does this still honor the separation of powers in the core of many western systems, put even into the letter of the Constitution?
In her reply brief before granting the certiorari, the petitioner argued the ripeness and standing issues have been already held correctly by previous proceedings and found the case justiciable, that is, both ripe and the petitioner to have standing. And the Court granted the certiorari limited to question that did not address the ripeness or the standing doctrines, implying the Court was satisfied with the holding of the previous courts.
In conclusion, the 303 Case does not implicitly say anything of the people’s right to create or alter law in the United States, but in its silence it gives tacit approval to previous courts’ holding on standing and ripeness; accepting a single, unelected private individual to bring a case without a factual event and argue on that, based on her Constitutional right, to deny the elected legislative branch their power to give law and the appointed executive branch to enforce the given law. This could embody the power of people in rule of law society, but it could also be argued the people are a mere vehicle for judicial branch to extend their power by their own, independent rule – Do either of these interpretations fit comfortably in the theory of separating the powers to three?
Team 303 Creative, Case Argumentation Analysis