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2 - Challenging the common sense idea of law

Published online by Cambridge University Press:  05 June 2012

Adriana Sinclair
Affiliation:
University of East Anglia
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Summary

The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty is generally an illusion, and repose is not the destiny of man.

Oliver Wendell Holmes

Introduction:

This chapter starts by identifying the dominant popular perception of law and picking apart and exploring its individual elements. For want of a better term, I have called this the common sense idea of law as this is most frequently how this picture of law is referred to. I do not mean to suggest that this picture of law is held only by those without the benefit of a legal education. Most academics, regardless of disciplinary allegiance, would exempt themselves from this category. Instead this is a popular narrative about law and is held by many members of the legal profession. It is also extremely powerful. In part, this is the power of the designation of ‘common sense’: who would disagree with common sense? But its power also stems from being so powerfully intertwined with the evolution of jurisprudence: the common sense idea of law is essentially a popular understanding of formalism. Formalism reigned supreme during the nineteenth century but it has been around in some form since the twelfth century. All this changed in the twentieth century when it was overwhelmingly rejected by academia. This rejection has yet to cross over into the popular imagination for two reasons: (i) the formalist idea of law fits perfectly into our understanding of the modern state, the separation of powers and the rule of law; and (ii) a convincing and suitably fitting alternative has yet to be found.

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Publisher: Cambridge University Press
Print publication year: 2010

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References

Holmes, famously argued that‘General propositions do not decide concrete cases’LochnerNew York 1905Google Scholar

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