CARDOZO AND UNCERTAINTY IN THE COMMON LAW

Abstract

Since at least the time of Blackstone, scholars have identified the “uncertainty” of the common law as a problem that is endemic to its functioning. Indeed, to Blackstone the idea was “so generally adopted” that any attempt to “refute it” was likely to result in ridicule. Yet, even to him, the precise source of the uncertainty was something of a mystery, variously attributed to the multiplicity of laws and judicial decisions, the resulting abundance of potentially contradictory rules, and the heightened discretion afforded to judges to declare the law in individual disputes. All the same, to Blackstone, the fault—if any—was not with the common law but with the nature of laws more generally. As he wrote: It has sometimes been said [that uncertainty] owe[s] its original to the number of our municipal constitutions, and the multitude of our judicial decisions; which occasion, it is alleged, abundance of rules that militate and thwart with each other, as the sentiments or caprice of successive legislatures and judges have happened to vary. . . . People are apt to be angry at the want of simplicity in our laws: they mistake variety for confusion, and complicated cases for contradictory.