Roger Scruton, Utopia and the Final Solution*

Courts and laws

Humans are social beings and we have a sense of justice, just as some furry animals do. This sense of justice seems to be innate – certainly furry animals are not taught it. Young children consider it unfair if they get a small ice cream and someone else gets a bigger one. This complaint has a dose of egocentrism, but also relies on notions of fairness. Fairness means getting one’s just deserts and desserts, and involves reciprocity e.g., one good turn deserves another.

Scruton points out that “law” preexists written law. The original law embodies customs, traditions, and expectations that involve notions of justice/fairness. British common law is an attempt to make implicit law explicit. In this way, the law is discovered, not invented. Even parliament was seen originally as having the function of a court, making commonly agreed upon laws explicit in the interests of resolving disputes.

Common law thus arises organically from the bottom up in patterns of social behavior embodying intuitions of justice. When a judge adjudicates a case he is trying to settle it in terms already being employed by members of the community. Common law represents a piecemeal attempt to solve unanticipated problems as they arise with a degree of trial and error. If a new decision seems to make things worse, then later decisions can modify the law.

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