date

Procedure 17 Aug 1804 Ch. Non
Procedure

17 Aug 1804

Ch. Non-homologation

From these /the above/ observations may be deduced, and not without practical advantage, the idea of those distinguishable sorts or qualities of jurisprudential law: 1. a sort of law good /purely good/ /doubly/ in itself, and at the same time good in /by/ respect of conformity - in respect of its conformity or ad [...?] to precedents: 2. a sort of law bad in itself, but good in respect of its conformity: 3. a sort of law doubly bad - bad in itself, and bad for disconformity (or say want of conformity) besides.

Meantime, in the course of the many ages that have intervened since the formation of the first collection of the raw materials of jurisprudential law, the state of society has undergone prodigious change - civilization has taken ample strides. What is the consequence? - That among the decisions which when first pronounced were conformable to the dictates of original utility would not be so pronounced at present /in these our times/: that consequently the general rules deducible from these particular decisions are not conformable to the dictates of original and immediate utility as they stand at present. Thus it is that to the mass of jurisprudential law bad in itself from the first, and if good in any respect good only by conformity, we must add another mass of jurisprudential law which though originally good in itself is become bad by lapse of time.
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  • Title: [Procedure 17 Aug 1804 Non-homologation]
    Description: Procedure

    17 Aug 1804

    Non-homologation

    In the infancy of this branch of law antecedently to the establishment of this rule describing adherence to precedents, its decisions would sometimes be conformable to the dictates of natural justice and original utility, sometimes unconformable. But by degrees /at length/ when a certain stock of precedents - in terms of a certain number of judicial instruments - and the memorials of a certain number /stock/ of judicial decisions had come to have been preserved, the possibility of adhering to that golden rule, and thence the [...?], grew up together. Thus progress being made, the whole stock of judicial precedents would have become distinguishable an idea into two parcels: the first consisting of those which at the moment of their formation were consonant /conformable/ to the dictates of natural justice and original utility, the other of such as at that period were unconformable in that original standard. Grounded upon any article or articles in the first the good parcel A subsequent decision will be at once conformable to the primary dictates of original utility, and to the secondary dictates of that secondary sort of derivative utility which consists /depends/ /proscribes/ upon adherence to precedence. Grounded upon any article or articles in the second parcel - the bad /faulty/ parcel - a subsequent decision would be conformable to the dictates of that secondary sort of utility - that derivative utility which depends upon /proscribes the/ adherence to precedence, but would be unconformable to the dictates of natural justice and original utility, as above explained.
  • Title: [Procedure 17 Aug 1804 Non-homologation]
    Description: Procedure

    17 Aug 1804

    Non-homologation

    Bad from the first, or bad only by the lapse of time, it is that we have two masses of bad jurisprudential law, to which without introducing the mischief of disconformity, that is of general instability and uncertainty, it is not in the power of jurisprudential law, of the makers o jurisprudential law as such - the Judges /I mean the Judge/ - ever to apply a remedy, a remedy except one which is, and which is very generally understood to be - in almost all cases /in all ordinary cases/ worse than the disease.

    /As it has been said to be of peat-moss, so it is at any rate the nature /It is the nature/ of jurisprudential law; to go on /it goes on/ growing without end. But as to that part which is bad in itself the longer it keeps on growing, the further /wider/ of course it diverges from that which is /whatever is/ good in itself - from the sound and useful branches /from the Courts o Utility, and [...?]. But all these ramifications good and bad together, are inexplicably and almost indistinguishably intermingled: insomuch that the whole /aggregate/ mass presents a body tainted with disease, covered with cankered spots, rotten in many places to the very core, and radically destitute of that intrinsic /salutary/ power, which, in the human body under the mysterious name of viz medicatrix nature, physicians are so found to celebrate /fond of [...?]/ are so happy to recognise.

    In statutory law, antinomia produces no uncertainty: in jurisprudential law, antinomia produces uncertainty, and that incurable.
  • Title: [1 March 1807 Judicial Justice]
    Description: 1 March 1807

    Judicial Justice

    Letter V

    Shapes

    Very much more extensive is the mischief where the subject of the erroneous decision is the point of law. The appropriate judge of the point of law is a permanent functionary. In whichever part of his mental frame, the intellectual or the moral, the error originated, the danger is that it may be, the presumption is that it will be, repeated. Individuals whose security in respect of person, reputation, property, condition in life depends upon the rectitude of his decision, see that security shaken: a pain of apprehension, more or less intense in proportion to the enormity of the error, takes possession of each breast.

    This is not all. For on the point of law, each Judge in his decision, unless otherwise directed by some sinister motive, makes it the constant object of his endeavours to keep his decision in a state of conformity, as close as possible, to the decisions pronounced on the same ground, or in default of compleat identity, on the nearest to it that can be found, on anterior occasions, by other judges. A universal sense of utility concurrs with personal convenience in the production of this effect.

    The more universal the prevalence of this habitual conformity throughout the body of the law - (the rule of action is in this case supposed to be in the state of jurisprudential law) - the greater is the degree in which the symptoms of uncertainty (the hereditary leprosy of this species of law) find their instigation.

    But the advantage thus attached to uniformity and consistency is attached to it on no other condition than in so far as the tone[?] of decision is subservient or at least not repugnant to the dictates of original utility as applying to the particular case in question in each instance. For it is with good decisions and thence with good rules, as with bad, one such may become "the fruitful parent of a hundred more."