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lect02-第6章

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defects of language and form。 On the other hand; these habits of






the English Courts seem to be closely connected with one of the






most honourable characteristics of the English system; its






extreme carefulness about facts。 Nowhere else in the world is






there the same respect for a fact; unless the respect be of






English origin。 The feeling is not shared by our European






contemporaries; and was not shared by our remote ancestors。 It






has been said  and the remark seems to me a very just one 






that in early times questions of fact are regarded as the






simplest of all questions。 Such tests of truth as Ordeal and






Compurgation satisfy men's minds completely and easily; and the






only difficulty recognised is the discovery of the legal






tradition and its application to the results of the test。 Up to a






certain point no doubt our own mechanism for the determination of






a fact is also a mere artifice。 We take as our criterion of truth






the unanimous opinion of twelve men on statements made before






them。 But then the mode of convincing; or attempting to convince;






them is exactly that which would have to be followed if it were






sought to obtain a decision upon evidence from the very highest






human intelligence。 The old procedure was sometimes wholly






senseless; sometimes only distantly rational; the modern English






procedure is at most imperfect; and some of its imperfection






arises from the very constitution of human nature and human






society。 I quite concur; therefore; in the ordinary professional






opinion that its view of facts and its modes of ascertaining them






are the great glory of English law。 I am afraid; however; that






facts must always be the despair of the law reformer。 Bentham






seems to me from several expressions to have supposed that if the






English Law of Evidence were re…constructed on his principles






questions of fact would cease to present any serious difficulty。






Almost every one of his suggestions has been adopted by the






Legislature; and yet enquiries into facts become more protracted






and complex than ever。 The truth is that the facts of human






nature; with which Courts of Justice have chiefly to deal; are






far obscurer and more intricately involved than the facts of






physical nature; and the difficulty of ascertaining them with






precision constantly increases in our age; through the progress






of invention and enterprise; through the ever…growing






miscellaneousness of all modern communities; and through the ever






quickening play of modern social movements。 Possibly we may see






English law take the form which Bentham hoped for and laboured






for; every successive year brings us in some slight degree nearer






to this achievement; and consequently; little as we may agree in






his opinion that all questions of law are the effect of some






judicial delusion or legal abuse; we may reasonably expect them






to become less frequent and easier of solution。 But neither facts






nor the modes of ascertaining them tend in the least to simplify






themselves; and in no conceivable state of society will Courts of






Justice enjoy perpetual vacation。






    I have been at some pains to explain what sort of authority






the Irish Brehon law did not; in my opinion; possess。 The 'law of






nature' had lost all supernatural sanction; except so far as it






coincided with the 'law of the letter。' It had not yet acquired;






or had very imperfectly acquired; that binding power which law






obtains when the State exerts the public force through Courts of






Justice to compel obedience to it。 Had it; then; any authority at






all; and if so; what sort of authority? Part of the answer to






this question I endeavoured to give three years ago ('Village






Communities; in the East and West;' pp。 56; 57); and though much






more might be said on the subject; I defer it till another






opportunity。 So far as the Brehon law declared actual ancient and






indigenous practices; it shared in the obstinate vitality of all






customs when observed by a society distributed into corporate






natural groups。 But; besides this; it had another source of






influence over men's minds; in the bold and never flagging






self…assertion of the class which expounded it。 A portion of the






authority enjoyed by the Indian Brahminical jurisprudence is






undoubtedly to be explained in the same way。 The Brehon could






not; like the Brahmin; make any such portentous assertion as that






his order sprang from the head of Brahma; that it was an






embodiment of perfect purity; and that the first teacher of its






lore was a direct emanation from God。 But the Brehon did claim






that St。 Patrick and other great Irish saints had sanctioned the






law which he declared; and that some of them had even revised it。






Like the Brahmin; too; he never threw away an opportunity of






affirming the dignity of his profession。 In these law…tracts the






heads of this profession are uniformly placed; where Caesar






placed the Druids; on the same level with the highest classes of






Celtic society。 The fines payable for injury to them; and their






rights of feasting at the expense of other classes (a form of






right which will demand much attention from us hereafter); are






adjusted to those of Bishops and Sings。 It is more than likely






that the believing multitude ended by accepting these






pretensions。 From what we know of that stage of thought we can






hardly set limits to the amount of authority spontaneously






conceded to the utterances of a sole literary class。 It must have






struck many that the influence of the corresponding class in our






own modern society far exceeds anything which could have been






asserted of it from the mere consideration of our social






mechanism。 There is; perhaps; an impression abroad that the






influence it exerts increases as history goes on; an impression






possibly produced and certainly strengthened by the brilliant






passages in which Lord Macaulay contrasted the well…paid literary






labour of his own day with the miseries of the literary hack of






Grub Street a century before。 I think that this opinion; if






broadly stated; is at the very least doubtful。 The class which;






to use a modern neologism; 'formulates' the ideas dimly conceived






by the multitude  which saves it mental trouble by collecting






through generalisation; which is an essentially labour…saving






process; the scattered fragments of its knowledge and experience






 has not always consisted of philosophers; historians; and






novelists; but had earlier representatives in poets; priests; and






lawyers。 It is not at all a paradoxical opinion that these last






were its most powerful members。 For; nowadays; it has to cope






with the critical faculty; more or less found everywhere; and






enormously strengthened by observation of the methods of physical






discovery。 No authority of our day is possibly comparable with






that of the men who; in an utterly uncritical age; simply said of






a legal rule; 'So it has been laid down by the learned;' or used






the still more impressive formula; 'I

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