B. Some Common Sense Propositions on Legal Dynamics
“When Tom [Lord Denning] and I were young the law was stagnant. The old-fashioned judge looked to the letter of the statute and for the case on all fours. He knew that he had to do justice according to law. Either he assumed that the law when strictly applied would always do justice or else he decided that, if it did not, it was not his business to interfere. Today this is not the idea. No statement of the law, be it a precedent or a statute, is ever final: it is to be read in its context and its context can change. A judge must never assume that the law always and in all circumstances does complete justice. That would be an impossible task to put upon any lawmaker. To do justice according to law the judge must keep his eye on the justice of the case as well as on the text of the law.”15
Lord Devlin

An American law graduate teaching English law as received in Hong Kong might naturally be left wondering at times how concepts of law had evolved so differently for these three jurisdictions from principles we all believed were held in common. Cases one would not have read in an American law school revealed that there had been considerable progress in English law in recent years, that was still unmatched in American law, which was generally considered the more progressive. At the same time, these same views cited in Hong Kong courts only served to make the colonial legacy there, to which they responded, appear more rigid. Conspicuous in all three jurisdictions was the desire of administrative agencies to read literally only those sections of the law most favorable to their own advantage. That leads the author to argue here that there are certain common sense propositions that one can make about the law, which, while they are not law by themselves, would enable an agency official, or a court, or even a well-programmed computer, to provide more well-rounded judgment.

“If it is ‘law’, it is binding,” you will say, “so what does ‘common sense’ have to do with it?” It is fashionable in some circles to belittle “common sense” as only naïve impression unaided by the scientific mind. Yet, that is only the figure of speech of those who purport to be able to speak with the benefit of some presumably exact authority. Needless to say that is not the “common sense” that is intended here.


If I am compelled to define the term “common sense”, however, then, “common sense”, is used here for the common understanding of what is also implied about the definition of the word “law”, when we say that there is a “body of law”, or a “system of law”, which, as Roscoe Pound once described it, “shows us how to fill in the gaps in laws”.16 “Law”, whatever the technical definition we choose, implies that the content of it is “binding”. By “body of law” or “system of law”, I intend to refer to not one principle or statute, or rule that is binding, but all such principles, or statutes, or rules which apply, and are binding, at the same moment in any given jurisdiction. #p#分页标题#e#

How does “common sense” enter into it? What I suggest is that it is “common sense” to mean certain things about the condition that applies when we say that there is a “body of law”. One of those “common sense” things is that, if there is a “body of law”, no one principle, or statute, or rule of law, applies independently of all the rest of the principles, statutes, or rules—unless, of course, it is to the extent that one of those principles, statutes, or rules expressly modifies, limits, amends, or, perhaps, repeals, another.

In brief, what I am calling “common sense” here is making the linguistic assumption that to speak of a “body of law” is to declare that all of it applies at the same time. There are also other linguistic—or, shall we say “common sense”—consequences. For example, we can not willfully disregard all other principles, statutes, or rules of law, in order to apply any one of them, selectively. If we accept that all principles, statutes, or rules, apply at the same time, then they all modify, extend, or limit, one another. And, perhaps, we can discover some greater expression of “intent” or “purpose” in the whole “body of law” than is, or can be, expressed in any one principle, statute, or rule.



Lon Fuller once said of the need to articulate such a long and obvious explanation—in reply to H.L.A. Hart’s theory of positivism—“I should have considered all these remarks much too trite to put down here if they did not seem to be demanded in an answer to the theory … that … implies we cannot have fidelity to law … unless we are prepared to accept [in that case, Hart’s legal positivism].”17

It is only Fuller’s turn of phrase that I am adopting here, not his legal philosophy. Yet, there may be some closer kinship when I say that the foregoing linguistically logical statement has other linguistically logical, or “common sense” consequences. Fuller was, after all, concerned that adopting Hart’s positivist view of the literal meaning of the “words” of any given principle, statute, or rule of law—must entail abandoning consideration of the “purpose” and “structure” within which those “words” were found. As the following will demonstrate, I do not hesitate to accept, as both Fuller and, on other occasions, Hart, presumably would have, that “legislative intent” and “purpose of law” are frequently manifestly included in legislation or in decisions in which the law is interpreted by the courts. It is to these often unspoken “linguistically logical consequences” that I refer to as “propositions” of legal dynamics.

Over the past century, there have been a number of attempts to study interlocking and purposive natural, social and conceptual “systems”. I believe the body of the law and the discipline of law, as it embodies the standards and traditions of interpretation, can also be included in such a system. More will be said about the origins of the “systems” approach below. In the 1940s Norbert Wiener and his associates chose the term “cybernetics” for the field of systems research where “information, feedback, and control” were taken as characteristics, not only of man made physical, or engineering systems, but also of biological systems, and abstract intellectual systems including language.18 In later years, Professor Jay Forrester of M.I.T. pioneered what he called the field of “system dynamics” for the study of interrelationships and interactions within social and abstract systems. The Society that he founded with colleagues of like mind defines this aspect of the “systems” approach as follows:System dynamics is a methodology for studying and managing complex feedback systems, such as one finds in business and other social systems. In fact it has been used to address practically every sort of feedback system. While the word system has been applied to all sorts of situations, feedback is the differentiating descriptor here. Feedback refers to the situation of X affecting Y and Y in turn affecting X perhaps through a chain of causes and effects. One cannot study the link between X and Y, independently, the link between Y and X predicts how the system will behave. Only the study of the whole system as a feedback system will lead to correct results.19 #p#分页标题#e#



Recognition of the importance of this kind of interactivity and feedback in the operation of legal dynamics should also have contributed to the increased role of legal dynamics in the decision-making functions of the law. There has in fact been increasing application of various forms of information technology, that can make it easier to track these interactions, in the practice and administration of the law in the past decade.20 However, the general tendency of decision sciences and decision support groups has naturally been to concentrate on advanced engineering models, analysis techniques, efforts in the direction of artificial intelligence, etc., applications leading to computer processing of data on the basis of theoretical models. The thesis advanced in the following is, however, not that legal decision-making would be better served by computer processing. Rather, it is suggested that “legal science” itself is an “information system”, that applies Facts and Rules according to established patterns, that constitute the “legal dynamics” of a discipline of decision-making.

Unquestionably, the technology that has appeared in the last two decades enables the current law practitioner to accomplish feats of research and documentation that would have required staggering efforts to match in previous generations. But, with respect, those who depend on “the use of technology” should not neglect that the key to understanding the underlying technology in law is in the discipline of the law itself. The law is rules— for which the data, the facts and issues, can be supplied and processed. The law is also judgment—through which the rules must be held to the facts, and both facts and rules must be weighed to determine how each applies in given circumstances.