Document Type

Article

Publication Date

2005

Abstract

...[T]he lesson of the past two hundred years is that we will do well to be on our guard against all-purpose theoretical solutions to our problems. As lawyers we will do well to be on our guard against any suggestion that, through law, our society can be reformed, purified, or saved. The function of law, in a society like our own, is altogether more modest and less apocalyptic. It is to provide a mechanism for the settlement of disputes in the light of broadly conceived principles on whose soundness, it must be assumed, there is a general consensus among us. If the assumption is wrong, if there is no consensus, then we are headed for war, civil strife, and revolution, and the orderly administration ofjustice will become an irrelevant, nostalgic whimsy until the social fabric has been stitched together again and a new consensus has emerged. But, so long as the consensus exists, the mechanism which the law provides is designed to insure that our institutions adjust to change, which is inevitable, in a continuing process which will be orderly, gradual, and, to the extent that such a thing is possible in human affairs, rational. The function of the lawyer is to preserve a skeptical relativism in a society hell-bent for absolutes. When we become too sure of our premises, we necessarily fail in what we are supposed to be doing.

When we think of our own or of any other legal system, the beginning of wisdom lies in the recognition that the body of the law, at any time or place, is an unstable mass in precarious equilibrium. The study of our legal past is helpful to lawyers and judges and legislators in the same way that the study of recorded games is helpful to a chess player. But the principal lesson to be drawn from our study is that the part of wisdom is to keep our theories open-ended, our assumptions tentative, our reactions flexible. We must act, we must decide, we must go this way or that. Like the blind men dealing with the elephant, we must erect hypotheses on the basis of inadequate evidence. That does no harm-at all events it is the human condition from which we will not escape-so long as we do not delude ourselves into thinking that we have finally seen our elephant whole.1

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Copyright 2005 The Journal of Contemporary Legal Issues. Posted with the permission of the The Journal of Contemporary Legal Issues. Personal use of this material is permitted. In addition, permission to reprint/republish this material for advertising or promotional purposes or for creating new collective works for resale or redistribution to severs or lists, or to reuse any copyrighted component of this work in other works must be obtained from the The Journal of Contemporary Legal Issues. Hard copies and or electronic download of this article may be obtained by contacting the William S. Hein Co. at http://www.wshein.com/ or EBSCO at http://ejournals.ebsco.com/home.asp or Lexis/Westlaw.

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