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 "a person's 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 '20 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] May 29 '20 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 May 29 '20 at 22:54
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    (by the way, the news also said the judge stated the adultery law is unconstitutional) May 29 '20 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. May 29 '20 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).

  • 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 '20 at 17:38

You're touching on one of the fundamental push-pull forces underlying a huge chunk of legal cases in a legal system that adheres to precedent in some fashion. I actually think the issue you're touching on explains almost every legal disagreement; though others would disagree and say it explains a lot of, but not every, case.

Sometimes these two forces don't have to be in conflict; this usually happens when the rule statement, from the precedent setting case, being applied is vague and therefore leaves some room for judgment. For example, if the holding of the only binding case is only "an act is negligent when a reasonable person wouldn't do it," then the judge applying this holding would have to use their own judgment in deciding whether the facts of the case before them show behavior a reasonable person would engage in. Such a situation would allow for modern culture and ethics to influence the decision.

The more fact specific prior holdings get, though, the more of a conflict you may have. For example, if a prior holding says "it's negligent to drive over the speed limit," a judge who thinks 'that's antiquated, everyone speeds a little bit,' is going to have to find a way around that case to rule the way they want to. The way around cases, generally, are (1) distinguishing, or (2) overturning. Can 'different time period,' be a distinguishing factor? I'm not sure.

I hope this answers your question somewhat. What I wrote above is, of course, a gross over-simplification for a couple of reasons: almost every case doesn't create just one 'rule of law,' and figuring out what 'rules of law' a case creates is a very, very tricky business.


So as you discussed in comments on your own line, this actually isn't a precedent concern... It's a constitutional concern.

Essentially, for the nations that have constitutions (these days, most of them... there are a handful of nations with "uncodified" constitutions, and even then, they still have documents that have the same effect).

Because most Constitutions are copying the United States Constitutions and making suitable changes, they generally do 5 Things: Establish the Constitution is "The Supreme Law of the Land", Establish the various branches of government, and what they can do, Establish what those branches cannot do, establish the rights of sub-national political units and citizens, and how to amend the constitution should the need arise.

That first part, where the Constitution is the "The Supreme Law of the Land" is quite critical feature here. In the U.S., which has a complicated federal structure, Federal Law is superior to State Law which itself is Superior to Local Law, which is Superior to one's own personal code of conduct.

If two laws are passed at the same level of superiority and one law conflicts with the other one, the law that is superior is the law that is used on the matter. Typically at the same level of superiority (i.e, A U.S. state passes a law that conflicts with the another law it passed) the law passed most recently will be "superior" and thus conflict.

The only exception is if the law passed prior to the conflict claims it is "Superior Law" for that level. Since Constitutions, claim "Superiority to all future laws" no law may be passed or enforced if it is in conflict with the Constitution. When a law is passed that conflicts with the constitution, all parts of the law that are in conflict are declared unconstitutional (It could be that a portion of a law is still constitutional and can be enforced. I.E. suppose a state in the United States passes a law that says "It is illegal to call 911 as a joke OR while wearing a clown costume." A judge may rule that this law is unconstituional but only with respect to the part regarding clown costumes while making it illegal to prank call 911 is still constitutional... thus the law stands, but only for enforcing the first part and not the second).

So in effect, the judge is not bowing to a changing standard of societal morals but agreeing that the Tiawanese Constitution does not support the criminalization of adultry, thus the law regarding adultry is null and void to the extent that it presents a criminal burden only... that adultry can still be used for grounds for a diviorce case (which is a civil law matter) is still perfectly constitutional. To put it another way, criminally prosecuting someone for adultry is, by the Constitution, not something the government can do nor something it could ever due, therefor the government may not enforce this part of the law and where they already have, they must make amends to the citizens so wrongly prosecuted. Or to quote Whoopie Goldberg "It was wrong then, and It is wrong now."

It should be pointed out that what is "legal" is not always what is "moral"... and this is not always a terrible thing... its a good thing that the law allows for those who dare to question societies' morales the freedom to do so. Consider the U.S. Civil Rights Movement... At the time it happened, it was not moral for African Americans to speak out against the Jim Crow Southern United States... but it was still "legal" for them to do so.

It is far worse that there are situations where what is "moral" is not what is "legal". Not every minority in the world has the ability to speak out against the mistreatment at the hands of the majority.

  • Most constitutions in europe mirror the French one. Which was at best inspired by the US.
    – Trish
    Mar 10 '21 at 8:35
  • @Trish: Yeah... there are some that make some notable differences, and the fact that most European, Asian, and African republics tend to be semi-presidential rather than presidential, which is popular in the Americas. I've had a good read at the Swiss Constitution, which was modeled after the U.S. constitution, and Switzerland does tend to operate as an "America by Europeans" as I explored their government structure, but even then they have oddities unique to them.
    – hszmv
    Mar 10 '21 at 12:37

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