By ascertaining the facts in this manner a rule or a

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Unformatted text preview: ds was part of the larger framework of resistance inherent in t conflicts of methodology between law and economics, examined in Chapter Five. These conflicts have been perpetuated through the use of stare decisis, or precedent, and the considerations of efficiency, accuracy, and predictability in the common law. 267 C HAPTER EIGHT: THE INFLUENCE OF PUBLIC POLICY ON DAMAGES AND LEGAL RECEPTION OF ECONOMIC THEORY Introduction Courts address legal disputes by turning attention to the facts which are considered tr in each instance. By ascertaining the facts in this manner, a rule, or a series of rules then invoked to fit the present facts into established forms and causes of action. The are drawn from past cases with facts arguably similar to a present case, and applied through the doctrine of stare decisis. Throughout the litigious process there is an underlying assumption that the process is necessary for the common good of society. T concept of a 'common good' provided early judges with a legitimising tool which they could use to justify decisions based on an intuitive sense of where justice could be fo in a particular case. This use of the concept of the common good provides the basis f public policy to inform the work of the courts. Historically, as established in Chapter Three, the church was an integral part of Engli government. According to Holdsworth, * from the medieval period: [c]hurch and State were regarded... as a single society which had many common objects ... bound to give one another assistance in carrying out those c o m m o n objects. [I]f the church is thus regarded as an integral part of the state, if the church's law is as much the king's law as the law of the state, a fortiori Christianity must be regarded as part of the law of England. 1 Holdworth, 1923, vol. 8, p. 403. 268 T he King's Bench, in 1663, expressly claimed to have inherited the church's role as "custos morum", or "the guardian of morals."2 The morals, of course, were Christian morals, and to offend the church was to commit an offence (see Chapter Two). Despite the concessions made to the Unitarians in England in 1813, and the subsequent repeal of "so much of the Blasphemy Act 1698, as related to the doctrine of the Trinity",3 Lord Eldon refused, in 1817, to allow execution of a trust which was settled to propagate teaching against the doctrine of the Trinity, holding that the impugning of the doctrine o the Trinity was still "an offence indictable by the common law". Although rejected in 1842, this early reflection of willingness on the part of the judiciary to enforce as 'common law' an overtly religious doctrine illustrates clearly the influence of the church on the English common law, which was examined in Chapters Two and Three, and was salient in the ossification of the classification dilemma into the common law, which was examined in Chapter Four. The law which the church sought to implement was 'God's Law,' as interpreted by the church and its clerical members.4 Thus, where a case presented issues found to be in contravention of the law of God, it was labelled as "against the common good".5 Prior to the Medieval Inquisition, discussed in Chapter Two, the clergy had been resistant to the violent attitude of the surrounding communities in the treatment of heretics. Slowly, over nearly two centuries, the church finally adopted a worldview incorporating 2 Black, H. C. 1990, Black's Law Dictionary, 6th edition, West Publishing p 387. Holdsworth, 1923, vol. 8, p. 411. 4 O n this view Lord Tenterden would have been enforcing "God's Law" in Page v Newman in 1829. 5 Sanderson v Warner (1623) Palm. 291; 81 E.R. 1087. Knight, 1922, cites several cases which, he asserts, shows the origins of public policy in case judgments. Along with Winfield, 1929, he makes a defence for the position that public policy started with consideration of the c ommon good based on the translation of "encounter common ley" as "against the c ommon good". This phrase seems more aptly translated "against the common law". In Sanderson v Warner, one prominent phrase in the legal French is "usury est encounter le common ley, & ley de Dieu" which should be translated as "usury is against the c ommon law 3 269 the hostile attitude into ecclesiastical standards of community oversight. In the same way, the courts were resistant to the commercial practices which began in the late 18th century and gathered momentum in the first decades of the 19th century. In contrast to the methods employed by the church to resist the encroachment of social attitudes in the period prior to the Medieval Inquisition, the defence by the court against the assault of the norms of a changing commercial society came in the form of the judgment of Lord Tenterden in Page v Newman in 1829. The intervening centuries between the time of the Medieval Inquisition and 19th century England had framed a more sophisticated legal enforcement structure, and the surroundi...
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