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INTRODUCTION: The Anchoring Common Sense and the Puzzles of the Law

Published online by Cambridge University Press:  05 June 2012

Hadley Arkes
Affiliation:
Amherst College, Massachusetts
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Summary

It might have been struck off in Verona. Or at least, that was the first inference likely to spring to mind, for the statute sounded as though it had been drafted in response to Romeo and Juliet, that it had been framed in contemplation of a city riven by small wars, with factions and families set off against one another. It smacked, that is, of a place “where civil blood makes civil hands unclean.” And indeed, it had come from a city in Italy in the late Renaissance – in the fifteenth century – but it was from Bologna, and it decreed “that whoever drew blood in the streets should be punished with the utmost severity.” Blackstone had noted the case in his Commentaries on the Laws of England, and he reported the judgment, reached after a long debate, that the statute was “not to extend to the surgeon, who opened the vein of a person that fell down in the street with a fit.” That the question should arise at all is a kind of testament to the enduring credulity of human beings – or the powerful need many people have to follow the rigid letter of the law rather than seek counsel in their own judgment, not guided by anything set down in the law.

For many people that diffidence may reflect a proper doubt about their own resources of judgment when left unguided or uninstructed.

Type
Chapter
Information
Constitutional Illusions and Anchoring Truths
The Touchstone of the Natural Law
, pp. 1 - 12
Publisher: Cambridge University Press
Print publication year: 2010

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