Tuesday, January 25, 2011

Pascal on chancery practice

Custom is the whole of equity for the sole reason that it is accepted. That is the mystic basis of its authority. Anyone who tries to bring it back to its first principle destroys it.
-- Pensées (Penguin ed. at 46).

... Pascal also has an observation that I could've quoted a dozen times over at the Volokh blog in threads on the constitutionality of the individual mandate:
It would therefore be a good thing for us to obey laws and customs because they are laws . . . But people are not amenable to this doctrine, and thus, believing that truth can be found and resides in laws and customs, they believe them and take their antiquity as proof of their truth (and not just of their authority, without truth).
Id. at 216. This is a distinction that lawyers find very difficult to convey to layfolk.

(Quotes taken from Slavoj Žižek's Sublime Object of Ideology, which somehow I did not read in grad school.)


  1. Over time our current appellate courts have been making a concerted effort to wring equity out of our jurisprudence, which I feel does indeed divorce our law from custom in the community. The law becomes more and more an alien force imposed from the outside, and, even worse, some sort of academic exercise engaged in by the legal profession to the discomfort of the citizenry. Pity. Our chancery courts met an important need in a rural state such as ours for many decades until the court of appeals was invented and chancellors diesppeard from the appellate bench.

  2. I often think we need a Court of Chancery Appeals. There are too few chancellors on our appellate bench, and they seem to have as little clue about non-chancery law as the non-chancellors do about equity.