Re: [Patents] newsscan: Software patent limits 'go too far'

[Jean-Baptiste Soufron <jbsoufron@free.fr>]

On Fri, 24 Oct 2003 09:47:06 +0200
Xavi Drudis Ferran <xdrudis@tinet.org> wrote:

> Consensus must appear in society (or at least debate must appear and a
> majority view prevail). This consensus or majority must be expressed
> in a law and judges should then follow that law in particular cases. 
> Judges are no source of consensus, and they should not steal the
> legislative power. 

You're totally wrong on that point. The text law never sometimes express
a consensus. Mostly, the text law express the interest of organized
groups able to pressurize the parliaments. Just like court's decisions
only express the interest of one individual against another one... 

But in fact, consensus is the result of a dynamic process. It's not a
matter of stealing legislative power. It's just that legislative,
executive and judicial power have the same nature and they do their job
one after another. Who begins is not important. What is important is
that when one of them take a decision (a text-law, a government
reglement or a court's decision), the other ones can take it and change
it to make it better (or worse like in software patents). Then the law
can slowly evolve thanks to their combined action and consensus begins
to appear, slowly. 

So, consensus often appears in courts long before any law can be
discussed in parliaments. I could give many examples like abortion,
homosexuality, worker protection and so on. Of course there are contrary
examples. Just as I said, the three powers have to combine their action
to create consensus. 


-- 
Jean-Baptiste Soufron, Doctorant
CNRS - CERSA Paris 2
http://soufron.free.fr
icq : 15127744
jabber : soufron@jabber.org