Document Type

Article

Publication Date

1916

Abstract

COMPOSING general statements of law is at best a didactic pursuit rather than a practically useful one, however agreeable an occupation it may be. The particulars of the past are not evaded by statement of their essence, and courts tend to guide their rulings by analogy to specific precedents in preference to rules educed therefrom by however studious laymen. And, on the other hand, the general expressions and definitions, so called, formulated by courts themselves, often hastily and hap-hazardly, which have been followed by other courts, do more to confuse the law, and confute its real precision of statement, than any other one factor. Comparatively little conflict exists among adjudications; most of it is between decisions and broad expression. Often when a result has been reached in the nomenclature of a particular rule, the truth is that the rule has been itself selected to fit the result desired, and terminology has been perpetuated in use where it has no real application whatever, in respect for the tenuous tradition that courts do not make law. This is undoubtedly the case in judicial findings as to consideration in contractual agreements.


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