date

30 June 1805 Evidence Introd
30 June 1805

Evidence

Introd. Jurisprudent

Ch. [...?]

''.6. [...?] of Utility

But although in the formation of a decision on any judicial question the dictates of special utility can never be altogether neglected and set aside, yet there are several circumstances which render it impossible that under a system of judicature in which any regard is paid to prior decisions these dictates should act with a weight in any degree approaching to that with which they are capable of acting and in every days practice do act on the mind of the legislator /in the scale of legislation/. Hence it is that the comparative incapacity of being kept in a state of conformity to special utility - in other words of being subservient /in a state of subservience/ to the general end of legislation - the well being and happiness of mankind /the community/ will be found to be among the vices essentially inherent in the constitution of jurisprudential law, and as such will be noted in its place.

Moreover as this special utility will be found continually in opposition to the general utility depending upon the mischief of departing without warning from precedents i.e. from established rules, whatever special advantage may be derived from the attention paid to the dictates of special utility will be alloyed with the general mischief of uncertainty, flowing from every acknowledged departure /departure observed to have been made/ from these rules: so that this additional source /spring/ what so ever it may contribute towards bringing /directing/ the current of decisions into a right channel can not but contribute to encrease that muddiness and confusion which pours in from so many other sources.
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  • Title: [29 June 1805 Evidence Introd]
    Description: 29 June 1805

    Evidence

    Introd.

    Ch. Jurisprudent

    ''. 3. Sources & decisions

     To be rewritten

    ''. 3. Sources of Jurisprudential Law.

    Jurisprudential law being a non-entity, jurisprudence considered as an art, the art of drawing conjectures, the next thing /objects of inquiry/ to be done is to obscure the sources or materials of conjecture /what there is of reality in the business consists of the sources or materials of conjecture/: the sources from whence the conjectures are to be drawn: the masses of materials out of which the factitious and fictitous laws are to be deduced contracted & deduced.

    These sources may be thus enumerated.

    1. Judicial decisions: decisions pronounced, opinions given, orders issued by Judges on the occasion of particular suits or causes.

    2. Judicial dicta: rules laid down by Judges on the occasion of the decisions pronounced in particular causes.

    3. Formularies or memorandums of the practice or procedure of Judges, or carried on under the eyes of Judges, in particular cause, in relation to points contested or uncontested.

    4. Articles or passages in Law Treatises, in the form of maxims or otherwise.

    5. Opinions extrajudicial of men of law.

    6. Supposed dictates of original utility of all these in their order.

    Judges putting sources[?] of their own upon the words property and possession in solemn trusting.
  • Title: [8 August 1805 Evidence Introd]
    Description: 8 August 1805

    Evidence

    Introd. Jursiprud

    Ch. II. Vices

    ''.9. [...?]

    Corrections, where they are made on it, can not any where be made but at the expense of certainty: in counter-weight against the particular advantage produced by the correction there is always the general mischief produced by the portion of uncertainty thereby infused into the whole system. By the same disposition by which the Judge is led on the particular occasion in question to depart from precedents /to violate the fundamental and universally extensive rule stare decisis/, so may he in any and every other. To disallow the authority of precedent on any one point is to disallow it on every other: it is to strike at a blow the whole fabrick of jurisprudential law.

    No (it may be said) it will not, if the change be really for the better, he can not deviate from precedent without the principle of utility for his warrant and his guide: such decisions and rules as are conformable to the dictates of utility /that standard/ will remain undisturbed those only will be laid by and disallowed, of which the interests of utility and substantial justice require that the system should be exonorated.

    1. The observation would approach nearer to a justification, if it were possible to draw the line between the rules which are, and those which are not so bad as to be worth changing: but this is plainly impossible.

    2. In the meantime the bare recognition of the principle that a rule once established may be departed from and virtually repealed by a Judge on the ground of its repugnancy to the principle of utility, would operate in men's minds in the character of a virtual repeal of an altogether undefined but vast and universally extensive portion of the aggregate mass of jurisprudential law.
  • 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.