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Proposed Reforms in Criminal Procedure
Published online by Cambridge University Press: 04 October 2013
Extract
Love of abstract justice is common to mankind in general and to all systems of law. But there are certain characteristics of what is known as the common law which differentiate it from all other systems. In its certainty, its fixity, its conservatism, which distrusts change and values precedent, it possesses qualities unknown even to the Mussulman with his interpretations of the Koran. There are two old maxims which clearly illustrate this thought. One reads “It is better that the law be certain, than that the law should be just.” And another: “An ounce of precedent is worth a pound of principle.” The legal ideas, methods and practices which prevail upon the European continent and in Spanish America are entirely different from those which obtain in England, the United States, and wherever the common law system is in force. It would be interesting to note the causes which led to the establishment of the two systems which may rightly be called the common law and the civil law; but even if time permitted this would be beside my purpose and I need only say that primarily perhaps it may be truthfully asserted that they are racial or temperamental. Much, of course, is due to environment in the formation of any social institution; but more doubtless to type of mind and the development of ideals. The chief feature of our common law system is, I think, its regard for the individual rights of man. It is nowhere denied that ideal liberty prevails only in those countries where the common law system obtains; and it is even more significant that this freedom has never consciously stood for license, but for liberty in its true sense. Under this system a man may do as he will save as his conduct interferes with the rights, and privileges of others. When this occurs he must subordinate his. will to the public good. He is not only to obey, but also to prevent others from disobeying. This is the “liberty under law,” which safeguards our system; liberty, the child of the common law which today holds together the most advanced civilization of our times.
- Type
- Papers and Discussions
- Information
- Proceedings of the American Political Science Association , Volume 4: Fourth Annual Meeting , December 1908 , pp. 246 - 259
- Copyright
- Copyright © American Political Science Association 1908