The Law of Reason

Authors

Fredrick Sir Pollock

Abstract

If there is one virtue that our books of authority claim for the Common Law more positively than another, it is that of being reasonable. The law is even said to be the perfection of reason. Not that the meaning of that saying is exhausted by the construction which a layman would naturally put upon it. For, as Coke had to tell King James I., much to his displeasure, there is an artificial reason of the law. Certainty is among the first objects of systematic justice. General principles being once fixed, the only way to attain certainty is to work out and accept their consequences, unless there is some very strong reason to the contrary. In hundreds of cases it is possible to suggest several rules of which, at first sight, any one would serve as well as another; and if we are asked why we have chosen one and rejected the others the answer is that the one we have preferred is deducible from our larger established principles, or at least consistent with and analogous to them, and the others are not. It is not good to choke rules with exceptions, merely for the sake of some small apparent convenience in the result, and at the risk of finding later that the exception, if not qualified by a second order of exceptions, is on the whole, less just than the rule. The sound method, as Parke laid down in an opinion given to the House of Lords seventy years ago, is to apply the settled rules of the law, where the application is not plainly'- unreasonable or inconvenient, to all cases which arise. But this very dictum assumes the existence, besides the reason which guides us in fixing the letter of the law, of a larger reason which informs the spirit of the law, and must, in the last resort, be the justification of the controlling rules themselves. Of this primary reason, too, not only book learning but every day's practice has much to tell us. Reasonable price and reasonable time are among the most familiar elements in our law of contract. Oftentimes no more definite instruction can be given to a jury than to award reasonable damages. "Natural reason and the just construction of the law," as Blackstone said, have given us the various applications of the common counts, extending to the whole field of what we now call Quasi-contract. In Lord Mansfield's hands the principles of natural equity were an enchanter's wand to call a whole new world of justice into being. The test of what a reasonable man's conduct would be in the circumstances governs our modern law of negligence and underlies those branches of it which have been specialized into groups of definite rules. Almost in our own time a simple and wholly untechnical conception of the same kind has been developed into the doctrine of estoppel "in pais," perhaps the most powerful and flexible instrument to be found in any system of civil jurisprudence. The scientific importance of this external standard of reasonableness, which enables the law to keep in close touch with the moral and practical sense of mankind in the affairs of life, was demonstrated once for all, more than twenty years ago, bv my friend Mr. Justice Holmes; and if my own endeavors to pursue its application in detail have any value, it is largely due to his example.

Recommended Citation

Fredrick Sir Pollock, The Law of Reason, 2 Mich. L. Rev. 159 (1903).
Available at: https://repository.law.umich.edu/mlr/vol2/iss3/1