January 8th, 2013


Выписки: Justice Cardozo

From Benjamin Cardozo's “The Nature of the Judicial Process”. A nice point highlighting one of the key advantages of a common law vs. statutory law based legal system.

The common law does not work from pre-established truths of universal and inflexible validity to conclusions derived from them deductively. Its method is inductive, and it draws its generalizations from particulars. The process has been admirably stated by Munroe Smith: “In their effort to give to the social sense of justice articulate expression in rules and in principles, the method of the lawfinding experts has always been experimental. The rules and principles of case law have never been treated as final truths, but as working hypotheses, continually retested in those great laboratories of the law, the courts of justice. Every new case is an experiment; and if the accepted rule which seems applicable yields a result which is felt to be unjust, the rule is reconsidered. It may not be modified at once, for the attempt to do absolute justice in every single case would make the development and maintenance of general rules impossible; but if a rule continues to work injustice, it will eventually be reformulated. The principles themselves are continually retested; for if the rules derived from a principle do not work well, the principle itself must ultimately be re-examined.”

(I'm doing some follow-up reading after completing the course on contract law from the "Sum and Substance" series. In short, I have realised my utter ignorance with regard to the law as a component within a human society and am now quite fascinated by the subject. Will try to post some thoughts if/when I have enough time.)

P.S. motto, превед! Я только сейчас подумал, что вот эта формулировочка про отличие условной английской от условной французской правовой системы это один в один рифмуется с твоими мыслями про отличие Интернета от ITU-T'шной телефонии.