Sunday, January 19, 2020

Legislation vs Common Law

Agree or Disagree?‬
‪Roger Scruton:‬

‪..As F. A. von Hayek has shown in Law, Legislation, and Liberty (1982), the common law, for example, contains information that could not be contained in a legislative program--information about conflicts and their resolution, about the sense of justice in action, and about human expectations, which is dispersed through the record of the law and is never available when legislation is the sole legal authority. Hence, the attempt to remake the legal order, through a legislative code that embodies all permissible solutions, is profoundly irrational. Such a code will destroy the source of legal knowledge, which is the judgment of the impartial judge as he confronts the unforeseeable course of human conflict..‬

‪I’m inclined to disagree.‬

‪What about statutes that codify the common law and then get case law on their provisions to meet individual instances accompanied by and subject to a continuing project of reform?

‪Take the (Canadian) Criminal Code for example.‬

‪I can’t imagine that an uncodified common law of crime is to be preferred to it. 

‪The French and Quebec Civil Code  provisions generate case‬ law that glosses them. ‬

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