It seems to me that the experience of the recent past teaches that any use of that invocation of "contemporary significance" in the context of proposed fundamental changes to, especially, the law of crime should cause warning lights to flash in the mind of every common law Judge. The nature of the warning is captured cogently in two particular statements of principle. One is contained in a paper entitled "Concerning Judicial Method", which was delivered at Yale University in 1955 by Sir Owen Dixon, then Chief Justice of the High Court of Australia. The other is contained in a work, "Orthodoxy", published in 1908 by G. K. Chesterton.
The passage in Dixon CJ’s paper is:
It is one thing for a court to seek to extend the application of accepted principles to new cases or to reason from the more fundamental of settled legal principles to new conclusions or to decide that a category is not closed against unforeseen instances which in reason might be subsumed thereunder. It is an entirely different thing for a judge, who is discontented with a result held to flow from a long accepted legal principle, deliberately to abandon the principle in the name of justice or of social necessity or of social convenience. The former accords with the technique of the common law and amounts to no more than an enlightened application of modes of reasoning traditionally respected in the courts. It is a process by the repeated use of which the law is developed, is adapted to new conditions, and is improved in content. The latter means an abrupt and almost arbitrary change. The objection is not that it violates Aristotle’s precept ... ‘that the effort to be wiser than the laws is what is prohibited by the codes that are extolled’. The objection is that in truth the judge wrests the law to his authority. No doubt he supposes that it is to do a great right. And he may not acknowledge that for the purpose he must do more than a little wrong. Indeed there is a fundamental contradiction when such a course is taken. The purpose of the court which does it is to establish as law a better rule or doctrine. For this the court looks to the binding effect of its decisions as precedents. Treating itself as possessed of a paramount authority over the law in virtue of the doctrine of judicial precedent, it sets at nought every relevant judicial precedent of the past. It is for this reason that it has been said that the conscious judicial innovator is bound under the doctrine of precedents by no authority except the error he committed yesterday.(The above quotation is taken from pages 158 and 159 of the paper as reproduced in the volume: "Jesting Pilate", a compilation of Dixon CJ’s extra-curial papers and writings.)
The relevant passage in the Chesterton work is:
Tradition refuses to submit to the small and arrogant oligarchy of those who merely happen to be walking about. All democrats object to men being disqualified by the accident of birth; tradition objects to their being disqualified by the accident of death.
Wednesday, July 18, 2007
I was editing a judgement today by one Justice Sully, sitting on the Court of Criminal Appeal, and was so impressed by his reasoning, and the material that he quoted, that I have decided to blog a portion of it. I think it will be obvious how this can be applied to many current trends in ethics and theology.
Saturday, July 14, 2007
One of the reasons I like reading the classics is because of the use of language, and the new words to be discovered, and what the books teach about life and character. Here is one such new word that I discovered in Jane Eyre some time ago, and recently re-discovered the computer file I made of it.
So many things in this world are nothing but ignes fatui (eg 1 Timothy 6:9-10).
.... and it is madness in all women to let a secret love kindle within them, which, if unreturned and unknown, must devour the life that feeds it; and, if discovered and responded to, must lead, ignis-fatuus-like, into miry wilds whence there is no extrication.
Jane Eyre, Charlotte Bronte
SYLLABICATION: ig•nis fat•u•u
NOUN: Inflected forms: pl. ig•nes fat•u•i
1. A phosphorescent light that hovers or flits over swampy ground at night, possibly caused by spontaneous combustion of gases emitted by rotting organic matter. Also called friar's lantern, jack-o'-lantern, will-o'-the-wisp, wisp.
2. Something that misleads or deludes; an illusion.
ETYMOLOGY: Medieval Latin : Latin ignis, fire + Latin fatuus, foolish. (From dictionary.com.)
Ignis fatuus (Medieval Latin, 'foolish fire'). The will o' the wisp or friar's lanthorn, a flame-like phosphorescence (caused by the spontaneous combustion of gases from decaying vegetable matter) that flits over marshy ground and deludes people who attempt to follow it. Hence any delusive aim or object, or some scheme that is utterly impracticable. It is also known by a number of other names, such as elf-fire, jack-o'-lantern, peg-a lantern, kit o' the canstick, spunkie, walking fire, fair maid of Ireland and John in the wad. (See Henry IV Part 1 III iii,).
(According to Russian folklore these wandering fires are the spirits of stillborn children, which flit between heaven and the Inferno.)
Brewer's Dictionary of Phrase and Fable, Sixteenth Edition, Revised by Adrian Room.
Thursday, July 05, 2007
Tuesday, July 03, 2007
I came across this "testimony" today and found it really encouraging. It's that of CJ Mahaney, author of the book Living the Cross Centred Life (which I haven't read), in which he says, with his tongue a little in his cheek, that he "was a calvinist experientially before he was informed doctrinally" because he was so saved out of a life of pervasive depravity when he was totally disinterested.