Since Legal Precedent is important or crucial, but at the same time the current culture or ethics also can play an important role, then how do they work together -- won't they conflict with each other?

I hope to understand it in the general sense, but one particular example is that Taiwan just made adultery legal (update: or rather, "not criminal but still has civil consequence")... the judge saying that adultery being a crime would contradict with the "self will of having sex" and "current culture and ethics have changed". So on the one hand, legal precedent can say it can have some sentencing, but the "current culture or ethics" may make it legal.

link to story 1. Link 2. On Economist.

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    In most (or at least "western") legal systems, judges don't make the law, they interpret it (in theory, at least). So when you say Taiwan made "adultery legal" do you mean that the legislature passed a law that legalized (or decriminalized) adultery (in which case the judge's comments are nothing more than commentary), or did a judge make a decision in a legal case? – sharur May 29 at 22:41
  • @sharur the news just mentioned the judge decided that it became legal... and then also released several people that were accused of adultery. The news never mentioned legislation. I think one concern was that if men can go to nightclubs, then why would women be illegal if they commit adultery. I, for one, think it was due to 10,000 or 2000 years ago (and maybe still apply today) that if a tribe can win another tribe and its women, it is considered victory, while if a tribe loses women to another tribe, it is considered a failure or breakdown... [con't] – nonopolarity May 29 at 22:54
  • [cont'd] so it might be related to men going to nightclub (or even made other women pregnant, or even in some culture, the exceptionally rich people, when they have several wives, nobody really object it openly even when it is supposed to be illegal), vs a woman bearing a child of another man. So it is like: winning for a tribe or a country, people in general think it is ok, but failing for a tribe or a country, people in general think it is not ok – nonopolarity May 29 at 22:54
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    (by the way, the news also said the judge stated the adultery law is unconstitutional) – nonopolarity May 29 at 23:02
  • Since the comments reflect that the focus of your inquiry is a specific ruling, you might want to post a link to the actual court decision. The question seems otherwise too broad. The scarce information provided so far is contradictory, but based on your statements the judge seemingly indulged in jus dare (i.e., creation of laws). If so, the judge infringed the legislative branch of government. – Iñaki Viggers May 29 at 23:18

Precedent can be overturned

A court at the same or higher level in the hierarchy is not bound by precedent and, if it is no longer in line with current societal expectations it can be overturned by such a court; creating a new precedent.

For example, the High Court of Australia recently overturned a 120+ year old precedent on quantum meruit claims partly for being out of step with community expectations on how such things should work.

The legislature can, of course, throw out any precedent it likes by statute (subject to any Constitutional constraints).

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  • Correct statements, however the question is about Taiwan and Taiwan is a civil law system and, thus, stare decisis/precedent are not exactly relevant! – A.fm. Jun 14 at 17:38

How is it that Law may work by “legal precedent” but then it also “goes with the current culture and ethics”? won't they conflict with each other?

They will (and do) conflict with each other, in part because much of the judiciary is incompetent. Many judges are driven by ineptitude and/or illicit interests, and they don't care about the ensuing nonsense of their blatant distortion of the laws. The ruling to which you allude is an example of that.

According to this article, in 2002 "[an] attempt at a constitutional reinterpretation of the adultery law failed, as 18 justices unanimously ruled it constitutional". Now they ruled it is unconstitutional. This change of mind inevitably prompts several questions: What prompted the drastic change with respect to the ruling from year 2002? Did the bulk of judges learn to read during the latest 18 years? Or did they forget that civilians are still able to read & comprehend legislation? What public confidence does that extent of judicial erraticism confer to the rulings judges have been issuing in the meantime? Or is it that judges have gotten worse now? Which judicial generation/offspring can we say is the good one?

Even the group which applauds the new ruling admits that it embodies a new definition of marriage and family. Coming up with novel definitions is tantamount to jus dare insofar as therewith the painstakingly enacted laws are vitiated. Furthermore, the justice ministry's acknowledgement that roughly 80 percent of Taiwanese are opposed to decriminalizing adultery contradicts the [judge's?] excuse that "current culture and ethics have changed" in this regard. This development has all the appearance that the judiciary has catered to minoritary groups at the expense of both legislation and society's broad consensus.

This issue is notorious also from the standpoint that "women are disproportionately [...] convicted under the law". Such gender bias does not stem from flawed legislation. It stems from judicial ineptitude. Indeed, Article 239 of Taiwan's Criminal Code is in terms of "[married] person" and "the other party to the adultery", whence only courts are responsible for the alleged disproportion that women have endured. Being the violators of the principle of equal protection in the Constitution, these judges' new ruling is hypocritical to the extent that they premise it on that constitutional principle. Regardless, attacking the adultery law is a misdirected effort against the gender bias that happens in court.

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  • Comments are not for extended discussion; this conversation has been moved to chat. – feetwet Jun 15 at 18:17

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