Common Sense in Law

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152 COMMON-SENSE IN LAW is often assumed in cases in which it would have been equally wise to go either to the right or to the left, and custom merely testifies to a more or less casual choice between two or three equally expedient courses. Why should two witnesses be required to make a will and not three, or why should it be neces- sary to summon a party three times before claiming the intervention of an official to help to bring the recalcitrant opponent to trial ? As a matter of abstract wis
...dom, two or four times would do equally well.
Lastly, if popular custom is natural and characteristic in early stages of legal history, as a child-like speech and manners are natural and characteristic of infancy, it would be as preposterous to try to fetter advanced civiliza- tion by rudimentary customs as it would be to dress a grown-up man in a child's clothes. A stage is necessarily reached by any pro- gressive community when naive and tradi- tional notions of right must give way before sharper dialectics and systematized learning.


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