Allen Mendenhall, ‘The Use of Knowledge and Moral Imagination in the Common Law’

This article discusses the common law in terms of Hayekian epistemology. The common law is not just a historical and governmental system for resolving disputes through courts and case precedents, traceable to eleventh-century England and adopted by the United States and nearly half of the countries on earth. It is also a mode of preserving and transmitting knowledge about the human condition that develops out of ascertainable facts rather than abstract speculation. It is bottom-up, reflecting the embedded norms and values of the community as against executive command or legislative fiat. The common law system always contains within it much that has fallen out of current use, or that the living generation has forgotten. Because the common law is disembodied knowledge, a cultural transmission whose fractions, divisions, branches, and components are too vast to be wholly comprehended by a single human mind, it makes available in perpetuity seminal principles for future discovery and reanimation. It embeds values and morals in the textual record so they will not perish during modish ages, so they may live through dark times, and so they are able to be seen even when they are unseen. Over centuries in the common-law system, the combined intents and motivations of judges, as expressed in opinions, approximate enduring truths, notwithstanding any passing feelings that dominate a present mood or ethos. An incalculable number of distinct cases, each with their own array of facts and with affinities only superficially apparent to judges, ultimately add up to a unified system, to wit: the common law.

Mendenhall, Allen, The Use of Knowledge and Moral Imagination in the Common Law (2009). Ohio North University Law Review, volume 45, 2009.

First posted 2019-05-11 09:06:14

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