Code v. Common Law

Just a random thought: As we learn about the U.C.C. we get another chance to think about the pros and cons of a "continental" system of law—where every law is written into statutes, or codified—versus a common law system, where the law develops sort of evolutionarily through judicial decisions, each building on the other. My thought is this:

Codified or "continental" systems are very "modern" in the sense of 19th and 20th century modernity and its almost infinite belief in the perfectability of systems and human progress. When you set out to write every law into formalized statutes, you seem to be making a sort of implicit claim that it's possible to eventually write the law down exactly as it ought to be, in its most perfect form, and thereby have a complete and perfect system of law. Codified law assumes solid foundations and fixed rules.

On the other hand, common law systems are actually more "postmodern" in the sense of postmodernity's rejection of the idea of perfectability and certainty in almost every subject. By refusing to write the laws down in explicit, formal form, you're implicitly admitting that you'll never get the law "right" -- you'll never find the perfect statement or formulation that captures the law as it "ought" to be, in its best form; therefore, you're admitting that this decision is merely temporary, applicable to this set of facts only, and subject to change by all future decisions. Common law assumes contingent foundations and differance.

Yes? No? Is anyone familiar with any scholarship on this subject?

Posted 05:11 AM | Comments (3) | law school

Call Me Mad Cow

Yeah yeah yeah, I know. Dean's Dead. Everyone keeps almost saying it, so it must be almost true, right? Well, listen to Jeff Greenfield:

Call me Mad Cow, but suppose you went to these big states and said "isn't it time that the larger states help pick a nominee? Aren't you tired of letting Iowa and New Hampshire run your campaign? You, California, New York, Ohio, Georgia, you never have any power. This is your chance to say to the democratic party, all right, we're going to help pick the nominee." We're talking about a long shot strategy for Howard Dean. But it doesn't seem to me impossible. When people say he's toast, he's finished, forget it, it's the same people often who said he's the definite nominee two months ago, and maybe we ought to look at what the possibilities are rather than saying, "Oh yeah, I know what the future is."

Posted 04:54 AM | Comments (2) | election 2004