Freedom, Society, and State - Ludwig von Mises Institute

forty years.(30) In short, while it may not react as
quickly as legislation, I see,no reason why the pure
common law approach could not successfully deal with
changing situations.
T his r a i s esan0 the r que s t ion: i f the c omm 0 n 1aw i s
really so flexible, how can this square with the very
certainty and stability of law that is supposed to be
its greatest attribute? It is no doubt true that the
art iculation of the common law into novel areas, or the
al ter Lng of the meaning of old precedents, does create
an element of instability. This is unfortunate and
should bern in imized as much as possible. But it ought
to be real i zed that the idea of a gaplesslaw is just
that : an ideal • Even legislated law wi I 1 inevitably
con t a ins 0 mega p s, and, as not e d earl i e r, t he un c e r ­
tainty of such law tends to be compounded by the very
process of legislating ever new or more laws. It is
probably impossible to say precisely what is the "best"
mix of stability and flexibilty. This is a personal
val ue judgement that depends on many factors. What can
be done is to indicate in a general way the relative
strengths and weaknesses of judge-made as opposed to
legislated law.
The strength of legislated law is not only the
speed wi t h wh i ch it can adap t to chang i ng ci rcumstances,
but since it is law that is consciously created
by a body of men and presented to the public in
closely worded written statutes, it tends to be more
precis e t han the comm0 n law. On the 0 the r hand, the
m0 r e compre hen s i veon e t r i est 0 rna kea' s tat ute, the
more likely it will be for a clause to conflict with a
c I au s e inanot her precis ely wr itten, c losely wor ded ,
comprehensive statute, or even to conflict with another
clause in the same statute. Perhaps more importantly,
since the legislature created the law, it can change
it, and change it overnight. The strength of legislated
law is the certainty of the law it provides in the
short run; its weakness is the instability and uncert
a i n t y i ten t a i I s for the Ion g run. Con ve r s ely, the
weakness of the common law is not only that it must
adapt more slOWly to changing situations but also the
instability that is created by the transition. Its
strength is that because no one can repeal existing law
or create completely new law the continuity of the
law is maintained, thereby giving individuals the
secur ity of knowing what the law is day in and day out.
That is, while there is greater transitional, or short
run, u nee r t a i n t y ass 0 cia ted wit h the c omID 0 n I aw, the r e
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