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Power may be conferred by governments, particularly when the public has an interest in the outcome. But usually, the power is pre-existing and self-evident. It is best identified in a contract, to make certain it is used in conflicts, but that is never absolutely necessary. The function of the judge is to decide if the power really exists and to decide a case within those bounds. In criminal law, the judge decides if the people really have enforcement power, and to enforce those bounds if they do. In civil cases, the judge looks for signs that the enforcement power is properly allied, since it is ordinarily applied by written contract, out of pre-existing sources.
Because civil disputes normally draw on defined pre-existing powers, those who resist any extension of Institutional powers often draw attention to this distinction to explain their preference.
Originally published: Tuesday, May 14, 2019; most-recently modified: Wednesday, May 15, 2019