date

28 July 1805 Evidence Introd
28 July 1805

Evidence

Introd. Jurisprud

Ch. II. Vices

From all that has been seen, of [...?] of one proposition seems sufficiently /tolerably/ clear,: that uncertainty is of /essential/the very essence of jurisprudential law.

That this uncertainty indeed admits of degrees, correspondent to the different classes of persons with relation to whom /in whose minds/ the uncertainty is considered as subsisting: viz: 1. non-lawyers: 2. attorneys, 3. advocates, in their character of opinionists, not to speak of Judges.

That be the answer what it may, how certain and clear what soever the answer to it may appear to be in the eyes of the advocate /opinionist/, or even the attorney, this relative and [...?] /imperfect/ degree of certainty will not be sufficient to divest it of the character of uncertainty with relation to the individual whose conduct is expected in reality or in pretence to be governed by it, and whose fate is made at any rate to depend upon it.

That the species or degree of uncertainty being of the essence of jurisprudential law, and not being of the essence of statutory law, constitutes a /the/ characteristic difference between the two species or forms of law.

Not, that even statutory law is essentially altogether exempt from the imputation of uncertainty. Every discourse is liable to be mis-expressed: every discourse, well or ill-expressed, is liable to be misconceived: and statutory law is a discourse. But as in what concerns the mode of exposition in the case of statutory law the mishap /inconvenience/ is but accidental and comparatively rare /and as the powers /faculties/ of the human mind gain strength by exercise is in a way to be every day less and less rare:/ in the case of jurisprudential law it is constant /essential/ and incurable. If Since as hath so often been observed, it is of the essence of jurisprudential law to have no tenor at all, no form and no collection of words, in to which the quality certainty can adhere /inhere/.
Similar Items
  • Title: [Procedure 5 July 1804 Ch. Non]
    Description: Procedure

    5 July 1804

    Ch. Non-homologation

    ''.3 Import uncertain

    ''.3-2. Import uncertain

    2. In the next place, from the indeterminateness of the words of which any given mass of the matter of jurisprudential law is composed, follows by necessary consequence the uncertainty of the import. Compare it in this respect with its [...?] and rival. Obscurity, ambiguity, and delusiveness are imperfections to which law in the form of statutory law is but too liable: for statutory law is but a species of human discourse, applying itself to that particular subject, and the above are imperfections to which all human discourse is liable. But in statutory law these are but individual and casual imperfections, imperfections capable of being lessened, and actually lessening every day, as the human mind advances in practice, and in that strength which is increased in practice. In /To/ jurisprudential law on the other hand they are essential, and (as will be seen more particularly under another head) incurable: the portion of them which results from our ill-adopted choice words bearing in proportion to that which arises from the absolute want of determinate words. The words of which the matte of jurisprudential is composed, those words indeterminate as they are, are still words: and to the several imperfections above-mentioned these words whatever they are, are still in no less a degree, but as will be seen in the much greater degree liable, than those determinate words of which the statutory law is composed. To all the imperfections, and those curable ones to which statutory law is exposed, all which it is loaded with and in a much higher degree jurisprudential law add its own essential, peculiar, and incurable ones.
  • Title: [15 July 1805 Evidence Introd]
    Description: 15 July 1805

    Evidence

    Introd. Jurisprud.

    Ch. Vices

    After this /By the above/ review of the sources, the reader is in some measure prepared for a list /catalogue/ of the vices inherent in a constitution /inseparable [...?]/ of jurisprudential law.

    1. At the head of the list is uncertainty. So many sources of the system, so many elements of the uncertainty which is essential to characterise it.

    In what has been said in relation to /under the head of/ uncertainty, an exception must however /all along/ be made in favour of the three grand products of the technical system, expense vexation and delay. On the side of increase no determinate limits can with any certainty be assigned to their respective quantities. But on the opposite side of domination they have in every /each/ instance a minimum: and within the limits marked out by that minimum they are as certain as death.
  • Title: [8 July 1805 Evidence Introd]
    Description: 8 July 1805

    Evidence

    Introd. Jurisprudential

    Ch. 2 Sources

    6. Dictates of Utility

    Thus it is that /We have seen how it is that/, the dictates of utility, clashing with rules derived /deduced/ from prudence (from prior decisions, in which no regard for utility is perceptible,) serve but to ensure uncertainty, under the reign of jurisprudential law.

    Not that, even were precedents altogether out of the case, insomuch that utility were in every case /on every occasion/ considered as the sole standard, and appealed to, directly and immediately in that character, without reference to any intermediate rule, not that even in such case, under the reign of jurisprudential law, any tolerable degree of certainty would be the result of the [...?] of the rule. The dictates of utility are /shew/ by no means so uniform /so uniformity to different eyes/ in the judgement of different observers, that any given /the known/ arrangement will always present itself to every observer as the only arrangement prescribed by utility in each given case: and even altogether all more were on every occasion agreed about the substance of the arrangement, still it would require the aid of statute law to give that fixity to the expression, without which no certainty can subsist. /the notion of certainty is [...?]/

    Statute law, be it ever so bad in other respects, may always be certain: therefore at any rate from that infathomable mass of mischief of which uncertainty is the cause. Jurisprudential law has the essential mischief of uncertainty, to counterbalance the good office of whatever values /good qualities/ it may have, and to aggregate whatever mischief is produced by its vices.