Thursday, October 05, 2006

Foundational Law Quotes XXVI

“The abuses of logic in the law are in line with similar abuses in other fields . . . A reaction against this has naturally been provoked and has taken diverse forms. . . . All of these forms of anti-intellectualism, however, concern us here only to the extent that they lead to a nihilistic absolutism according to which there can be no logical certainty in the law at all. In the main this has been supported by nominalistic dogma that there can no law other than the actual individual judicial decisions, which have physiologic causes such as the state of digestion, etc., but no logical determinants. I cannot here examine in detail the metaphysical assumptions of this dogmatic nihilism, which no one has ever carried out consistently because it is practically impossible to carry out any universal denial of the existence of universals.

. . .

[T]he stream of judicial decisions has a continuity, and judges in deciding actual cases are to some extent influenced by the logical demands set by the prevailing conception of what the law is or ought to be. The law is not in fact a completed, but a growing and self-correcting system.

. . .

When, however, we come to descriptions of nature, or prescriptions for human conduct, we cannot attain such absolute precision and we have to expect imperfection, though we must hold the idea of perfection with sufficient tenacity to realize that our actual achievement has fallen short of it. This recognition of the necessity of the ideal and our inability throughout time to achieve perfection, is the condition of intellectual and moral sanity.

. . .

[T]here can be no just order unless there is also what I have called ‘formal’ justice, i.e., a general determination on the part of those who deal with the law to live up to its spirit, to carry out not only its literal provisions but the ideal inherent in it. Doubtless, the law will never, so long as it is administered by human beings, be free from arbitrary will and brute force. Nevertheless, it cannot function in an organized society without some rational effort at justice as an ideal harmony.”

- Morris R. Cohen (1936)

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