What empowers the Conclave to consider “precedent” on a near equal status to legislative law? In other words, based on the Concordat, where is it derived that the Conclave can form precedent with its status as nearly equal to statutory law?
Conclave draws this ability from the duty it is assigned in Article C of the Concordat:
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This Concordat does hereby invest judicial power in the Conclave, which shall be the interpreter of this Concordat and the judge and jury of Citizens and appealing Residents.
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Here it is granted interpretive authority over the Concordat. As the only court of law in The East Pacific, it also has interpretive authority on matters of statutory law where it concerns trials, hearings, or circumstances laid out in C.5 and C.6.
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The Conclave may rule on the actions of the Delegate or the Viziers and nullify any which are contrary to this Concordat or statutory law. Furthermore, the Conclave may nullify any law passed by the Magisterium that is contrary to this Concordat. The Conclave is empowered to compel a legally required action by Order with any indictable penalty.
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The Conclave may rule on the actions of any Citizen to be in violation of this Concordat or of the indicted offences as prescribed by the laws of the Region and sentence those found guilty pursuant to statutory limits. Trials in the Conclave shall be in open session.
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As Halley points out, precedent is a sort of extension of this interpretive power. Conclave can form precedent in the same way that it can interpret the law; precedent is a more convenient and consistent way of interpreting this law. The consistency of precedent is perhaps far more important than anything else. By forming precedent on an issue of legal interpretation, Conclave not only resolves a legal question at hand but does so indefinitely, such that future questions to the same effect need no deliberation except to cite precedent.
Precedent draws its near-equal status to statute law from this same place. Precedent is, at its core, a consistent interpretation of the law. As an interpretation of the law, it has the full force of law as long as that interpretation is maintained. Conclave’s administrative rules, which among other things define precedent in this manner:
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A.1- Precedent is defined as the legal rules, principals, interpretations, reasonings, and other items tied to trial verdicts or judicial reviews that are upheld through the will of the court. Precedent is considered to be near-equal to the status of laws written by the Magisterium.
A.2- Law written and passed by the Magisterium (hereby referred to as “statutory law”) is considered superior to precedent. Statutory law must be the first type of law examined for any matter regarding a trial or judicial review. This includes in the formation of a verdict and its reasoning.
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Considering precedent’s status as near-to-statutory-law, what happens when the Standing Orders of a specific branch conflicts with a principle or other form of precedent? Do the Standing Orders overrule precedent? Or does precedent overrule the Standing Orders?
Standing Orders have an awkward relationship with the law. Primarily they are internal rules without the force of law. However, the Concordat and statutory law at times give the force of law to these Standing Orders in narrow areas of effect. For instance, Article B of the Concordat gives the full force of the Concordat to the methods of inducting or removing Magisters. In these areas, a change to the Standing Orders is effectively a change in the Concordat or statutory law, and may overrule precedent in the same way that a Concordat amendment or act of the Magisterium might. Where the Standing Orders do not have this authority, I am inclined to support the superiority of precedent over the Standing Orders.
I will note, however, that Conclave’s ability to interpret the Standing Orders is unclear to me. Where they do not have the force of law, Conclave’s ability to interpret them almost seems an advisory one. We can certainly assert that certain Standing Orders have no power if they contradict the law or other precedent, but interpreting the Standing Orders themselves almost seems a courtesy service rather than one where Conclave has real authority.
Can someone be tried solely if they break precedent that is a norm, rule, or principle, assuming statutory law has no conflict with said precedent or does not cover what said precedent covers? If so, what sentence can be given to such a person, assuming there is no precedent or statutory law which gives a sentence for such an offence?
As precedent is the consistent interpretation of the law by the Conclave, criminal violation of the terms set out in precedent are effectively violations of the law itself. As you point out, this is assuming that precedent does not conflict with statutory law. If the law has changed since precedent was formed, Conclave may have to reconsider how much of precedent on that law still applies, revising its interpretation to better fit the new law. Where precedent concerns a crime for which clear terms of sentencing exist, those terms would apply. Beyond that, it’s about as unclear as how to punish violations of other parts of the Concordat or statute law which do not neatly fit into crimes that sentencing has been laid out for.
In otherwords, can someone be indicted and convicted solely on relevant precedent that does not contradict with any statutory law?
This is a bit of a contradiction in terms, I believe. If relevant precedent does not contradict statutory law, then I would imagine the criminal case would not solely rely on precedent but also the statutory law. Precedent coexists with the law it interprets. Even in those cases where precedent exists more to fill in the gaps of law than to clarify the law, which law it is supplementing would likely seem relevant to the case. I’m not sure I can give a better answer to this unless I were confronted with an example case the Conclave must rule on.