Are there inherent determinants that govern basic factual situations and coalesce with them in the directed development of a rule of law? To put it another way, does a rule of law evolve? If a judge reads a number of cases with similar facts, a presently existing consciousness confronts the written material on the pages. By bringing together these cases, the reader has constellated them into an independent entity, an entity that can only be described as a kind of being. If this being is regarded, studied, perused for meaning, does it not likewise regard the reader? When the reader has completed his analysis, integrated the relevant principles of law, and announced in the form of an opinion his conclusions, does not this being or entity, in a subtle and quiet way, simultaneously make known its conclusions and judgments on the reader? Perhaps what has taken place is a momentary coming together of distinct beings, one timeless and pure idea, the other finite and material.
Every lawyer operates on the assumption that there is a significant element of predictiveness in the development of the law, and that there may be something approaching accurate knowledge as to the particular turn the law will take just up ahead. A primary function of the lawyer as a theorist is to do a thorough, efficient job of marshaling his data and materials, apply his mind like a fine tool to the problem before him, and posit the likely course of the law. But the immediacy of his task and its wholly utilitarian purpose give him no reason to go beyond the merest edge of the present, a penumbra in fact so fused with the present that authentic predictive positions may easily be attributed to hunches, a feel for the times, or common sense. When the lawyer is a practitioner, he wears near-sighted glasses; he must do so. Yet, in order to get at the question we pose, even in the most tentative way, we must be ready to treat the practitioner's methodology, with its concern for the period that stretches from the immediate present to the immediate future, to be no more than a special application of a larger general principle. In the exposition of this larger principle, therefore, we ought to assume the existence of a different world, admittedly imaginary, in which the lawyer's role and his concern is to arrive at predictive inferences on matters that will culminate, not next week or next year, but, for example, in fifty years. The question, therefore, is whether the lawyer can, given a concerned interest in that distant time, posit the probable course of the law from presently existing determinants.
Murphy, James P.
"The Evolution of the Prenatal Duty Rule: Analysis by Inherent Determinants,"
University of Dayton Law Review: Vol. 7:
2, Article 3.
Available at: https://ecommons.udayton.edu/udlr/vol7/iss2/3