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7 July 1805
Evidence
6. Dictates of Utility
That in the formula of those decisions which are employed as [...?] of jurisprudential law no regard at all should have been paid to the dictates of utility - that utility should have had no place among the sources from whence the system is derived, is a proposition which never could have been /impossible to have been/ resolved, in any existing system how /however/ barbarous and absured soever. Utility it was and nothing else that contributed the origin of all judicature, except in so far as judicature may have been employed by some single ruler for one other purpose than the mere support of his own power, utility it must have been and nothing else that constituted the origin of all judicature. At no time has judicature been any thing less than necessary to the very being of society: every where the existence and preservation of those regions on which security for person, property, reputation and condition in life depends have been the work of judicature: and it is by the source of utility, of that extreme utility which reserves the name necessity, that men's acquiesence in the application of the [...?] of judicature to the several needs were /was/ every where produced.
But all over the world judicatures must have been carried on, carried on for a countless multitude of ages, before any of their operations were in use by which the memory of past decisions is preserved. Jurisprudential law grounded on considerations of utility must therefore have been formed, long before the foundation of that sort of jurisprudential law which is grounded in precedents.
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Title: [30 June 1805 Evidence Introd]Description: 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: [Procedure 17 Aug 1804 Ch. Non]Description: 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: [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.
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