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Making fair decisions

Roger Scruton gives us a blow-by-blow description of common law at work. It is quite a contrast to the corpus juris we mentioned below. Here is Scruton -

When one person has a complaint against his neighbour and applies to the judgement of a court, he is seeking a remedy. The facts of the case may never have been considered before, and the judge may have no explicit rule of law, no precedent and no Act of Parliament to guide him. But still there is a difference, the common law says, between a right and a wrong decision.

Thus it was, for example, in the leading case of Rylands v. Fletcher (1865) in the law of tort. The defendant was a mill-owner who had constructed a reservoir on his land. The water burst through old mine shafts into the mines of the plaintiff, which were thereby flooded and put out of use. No similar case had come before the courts, yet clearly there were questions of right and liability to be decided.

The Court of Exchequer Chamber (one of the antique courts which then existed, signalling its history in an exquisite name) gave judgement in the following words of Mr Justice Blackburn: 'We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.' This rule, the judge added, 'seems on principle just'.

. . . The final authority in English law was the particular case, which had to be studied with all its facts, in order to extract the law which was its ratio decidendi. Hence English legal thinking remained concrete, close to human life and bound with the realities of human conflict. . .Many of the leading judgements – Lord Denning's for example – are also celebrations of the ordinary individual in his attempt to live by the law. From England, An Elegy

. . .concrete, close to human life and bound with the realities of human conflict. . .celebrations of the ordinary individual in his attempt to live by the law. Just law.

That is what is at stake.

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