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The following could be answered simply by the separation of judicial and legislative branches in places such as the US but here goes:

I could swear I once heard this legal maxim/quote/aphorism/idk that goes something like

Law maker should not be law interpreter

However I was not able to find anything like this on an initial google search, except this. But I think I get the idea that like congress makes laws and then it's up to courts (and juries, if applicable) to apply the made laws in specific cases.

Question: Is there any such kind of maxim/quote/aphorism/idk?


Update: I dug up where I got this. Here's (part of) the original quote

Lawmaker should not be interpreter: I also learned that one of purposes of the separation of powers (executive, legislative, and judiciary) is that the lawmaker cannot interpret his own laws. A third party, i.e. the judiciary or the court, does that.

You won't be able to find this online or anything. This was written by a now-lawyer but not in the US, and this was written while the person was not yet a lawyer but was already a graduate of law school. For anonymity, privacy, etc, I hope I need not provide much of the context.


Related: https://academia.stackexchange.com/questions/144597/do-students-have-the-right-to-see-how-their-papers-were-graded#comment429746_144597

I'll briefly point out (re: "How will any student get feedback") that the education people have a theory of formative-vs-summative assessment, which in its extreme form, argues that you shouldn't ever give feedback and a grade on the same assignment.

by Daniel R. Collins

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  • In U.S. law, the usual statement is something along the line of the court should defer to the legislature and not make law on something that is the province of the legislature. "Law interpreter" is an awkward and uncommon term in U.S. jurisprudence. For some buzzwords see jstor.org/stable/3313544?seq=1#metadata_info_tab_contents – ohwilleke Dec 23 '20 at 0:07
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    @ohwilleke but in quote in update, there is no mention of 'law interpreter'. 'law intepreter' was my term based on how i remembered the quote in the update. – BCLC Dec 23 '20 at 5:28
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Is there any such kind of maxim/quote/aphorism/idk?

Not really. The criticism in that website and the phrase are misguided. "Interpreting the law" has different connotations depending on who makes the interpretation and the purpose therefor.

When the legislature alleges that its provision(s) is(are) compliant with the Constitution, the legislature is not deciding a controversy between adversaries. In other words, the legislature's interpretation of its laws is not in a judicial capacity. It only defends --oftentimes preemptively and/or needlessly-- the notion that the enactment at issue satisfies a set of requirements or principles.

By contrast, the judiciary's interpretation of laws is geared towards deciding a dispute between adversaries. The interpretation is supposed to apply the legislative intent & terms of the statutory laws that are at stake in the controversy. One of the adversaries could be the legislative branch of a government, but "interpretation of the law" in a judicial sense is much wider encompassing than disputes involving the legislature.

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  • thanks. 'When the legislature alleges that its provision(s) is(are) compliant with the Constitution' --> provision is like a thing before it becomes a law? – BCLC Dec 22 '20 at 12:44
  • @BCLC Provision is just another name for terms in a contract or a statute. – Iñaki Viggers Dec 22 '20 at 12:48
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    @BCLC Done. I added it where it paraphrases what was already there. – Iñaki Viggers Dec 24 '20 at 16:13
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    Thanks Iñaki Viggers. merry christmas, and happy holidays! – BCLC Dec 25 '20 at 1:21
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    @BCLC Thank you, the same to you! – Iñaki Viggers Dec 25 '20 at 1:21
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I believe that you will find something similar to this idea in the philosophy of John Locke. Locke was an early advocate of the governmental separation of powers, and his political works significantly influenced several of the framers of the US Constitution. (See Gary Willis, Explaining America for more on this.) There was also a maxim, several times quoted in The Federalist That "no man should be judge in his own cause". This meant that, insofar as possible, the rights and powers of any person or institution should be determined and limited by some other person or body. This is part of the "checks and balances" theory of the US Constitution.

All these are, at best, rules of thumb for the design of governmental systems and legal structures. Such maxims are not themselves enforceable law, and they are not invariably followed.

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  • Thanks David Siegel! Actually, I updated post to include where i dug up 'Lawmaker should not be interpreter'. is your answer still the same? – BCLC Dec 22 '20 at 23:44
  • I found where Locke spoke of separation of powers, but he proposed interpretation to the executive. I could however point to Hamilton in Federalist 78 to actually demand judicial independence from the legislature. See below. – Trish Dec 24 '20 at 16:38
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One of the best writings about Judicial Independence came up at the latest during the prelude to the American Revolution/War of Independence - when the idea was well enough established that the founding fathers were arguing for fully independent legislative powers from judicative courts. On 28 May 1788, in the Federalist No. 78, John Hamilton wrote (emphasis mine):

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers.'' And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

The conjecture "The legislative shall not interpret its laws" is a direct follow up on the idea that judicative, legislative and executive powers have to be as separated as possible, the logic result of the complete independence of the Judicative.

One of the pillars this was founded on is John Locke, who heavily influenced this mindset. He wrote Two Treatises of Government in the late 1600s. In it, he postulated the separation of powers, but he did not propose a judicative power there, as Stanford University will remind you of:

The fact that Locke does not mention the judicial power as a separate power becomes clearer if we distinguish powers from institutions. Powers relate to functions. To have a power means that there is a function (such as making the laws or enforcing the laws) that one may legitimately perform. When Locke says that the legislative is supreme over the executive, he is not saying that parliament is supreme over the king. Locke is simply affirming that “what can give laws to another, must needs be superior to him” (Two Treatises 2.150)

[...]

Locke is not opposed to having distinct institutions called courts, but he does not see interpretation as a distinct function or power. For Locke, legislation is primarily about announcing a general rule stipulating what types of actions should receive what types of punishments. The executive power is the power to make the judgments necessary to apply those rules to specific cases and administer force as directed by the rule (Two Treatises 2.88–89). Both of these actions involve interpretation. Locke states that positive laws “are only so far right, as they are founded on the law of nature, by which they are to be regulated and interpreted” (2.12). In other words, the executive must interpret the laws in light of its understanding of natural law. Similarly, legislation involves making the laws of nature more specific and determining how to apply them to particular circumstances (2.135)

However, even under Locke, the legislative still doesn't interpret the laws, that's up to the executive, so one might say, the idea stems from at latest Locke's writing.

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