date

1 March 1807 Judicial Justice
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."
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