The Common Law Consists of About Half A Dozen Obvious Propositions, But Unfortunately …

Judge Dowdall? William Pickford? Lord Sterndale? Anonymous? Apocryphal?

Dear Quote Investigator: Some lawyers take pride in their use of rigorous logical and legal reasoning. I once heard a hilarious remark about the body of law accumulated over the centuries. I do not remember the exact wording, but it was something like this:

The entire body of law and legal precedents may be derived from six obvious propositions; unfortunately, no one knows what they are.

Have you heard this saying before? Could you explore it?

Quote Investigator: In 1931 a judge named Dowdall presented a paper titled “The Psychological Origins of Law” at the Centenary Meeting of the British Association for the Advancement of Science. He included a saying about the common law that matched your description. But he enclosed the remark in quotation marks to indicate that the words were not his. Boldface has been added to the passages below:[ref] 1932, British Association for the Advancement of Science: Report of the Centenary Meeting, (Held in London on September 23 through 30, 1931), Sectional Transactions – H – Anthropology, (Paper presented Saturday, September 26, 1931), “The Psychological Origins of Law” by His Honour Judge Dowdall, Start Page 448, Quote Page 449, Published at the Office of the British Association, London. (Biodiversity Heritage Library at link [/ref]

Man’s rational nature looks to find some presiding genius or logical principle behind, and giving consistency to, these decisions—a god of justice, a law of nature, etc. But such is not easily found even in these days, and the discovery is fragmentary. ‘The English common law consists of half a dozen obvious propositions, but unfortunately no one knows what they are.’

In 1932 Judge Dowdall wrote a letter to The Times of London and stated that he heard the saying from William Pickford who became Lord Sterndale, a British judge appointed to the High Court. In the following excerpt the phrase “taken silk” referred to a barrister becoming a Senior counsel:[ref] 1932 January 26, The Times (UK), Points from Letters: Lord Sterndale on Common Law, [Letter from Judge Dowdall], Page 8, Column 6, London, England. (The Times Digital Archive Cengage)[/ref]

Lord Sterndale once said, “The common law consists of about half a dozen obvious propositions, but unfortunately nobody knows what they are.” He was reading a case I had looked up for him, and I did not know whether he was speaking to himself or enlightening a junior barrister in the mysteries of the law, and as his clerk immediately called him into Court the matter dropped. He was a leader at the time, and I think it was not long after he had taken silk. The observation is so witty and true that, unless it is already familiar, it deserves record; but as the number of those who knew, Lord Sterndale diminishes it would be interesting if any of your readers ever heard him make a similar observation.

Here are two more citations and the conclusion.

In 1936 a different version of the saying appeared in the Annual Report of the British Association for the Advancement of Science. The expression was considered malicious:[ref] 1936, British Association for the Advancement of Science: Report of the Annual Meeting 1936, (Held in Blackpool on September 9 through 16, 1936), Section J – Psychology, The Patterns of Experience by A. W Wolters, Start Page 181 Quote Page 187, Published at the Office of the Association, London. (Biodiversity Heritage Library at link [/ref]

This remarkable invention of our race has been maliciously described as consisting of a vast body of decisions and pronouncements, all readily deducible from a very few simple and universally accepted principles, though no one knows what they are. I cannot say whether this description is true, but there is no psychological difficulty in it. Common Law principles are the ways of living together developed by English people, and like all skills (for skills they are) they were developed in pursuit of ends which did not include the purpose of inspection.

In 1881 Oliver Wendell Holmes, Jr. who later became a Supreme Court Justice published an influential treatise titled “The Common Law”. He argued that the body of law could not be derived deductively:[ref] 1909 (Copyright 1881), The Common Law by O. W, Holmes (Oliver Wendell Holmes, Jr.), Quote Page 1, Little, Brown, and Company, Boston, Massachusetts. (Google Books full view) link [/ref]

The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.

In conclusion, the humorous remark about the law alluded to by the questioner was ascribed to Lord Sterndale by Judge Dowdall beginning in 1931 and 1932. There are multiple legal systems, and the remark was about the common law system.

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