Pollock, Sir Frederick & Frederic William Maitland, The History of English Law Before the Time of Edward I, 2d. ed.: Volume I (Indianapolis: Liberty Fund, 2010) ("Another point on which confusion is natural and may be dangerous is the relation of law to morality. Legal rules are note merely that part of the moral rules existing in a given society which the State thinks proper to enforce. It is easily recognized that there are, and must be, rules of morality beyond the commandments of law; no less is true, though less commonly recognized, that there are and must be rules of law beyond or outside the direct precepts of morality There are many things for which it is needful or highly convenient to have a fixed rule, and comparatively or even highly indifferent what the rule shall be, When, indeed, the rule is fixed by custom or law, then morality approves and enjoins obedience to it. But the rule itself is not a moral rule. In England men drive on the left-handed side of the road in the United States and nearly all part of the Continent of Europe on the right. Morality has nothing to say of this, except that those who use the roads ought to know and observe the rule whatever it be, prescribed by the law of the country. Many cases, again, occur, where the legal rule does not profess to fulfil anything like a perfect justice, but where certainly is of more importance than perfection, and an imperfect rule is therefore useful and acceptable Nay, more, there are cases where the law, for reasons of general policy, not only make persons chargeable without proof of moral blame, but will not admit proof to the contrary. . . ." Id. at xxxvi. "The reign of Henry II. is of supreme importance in the history of our law, and its importance is due to the action of the central power, to reforms ordained by the king. Still it was rather as an organizer and governor than as a legislator that Henry was active. He issued no code; we may even doubt whether he published any one new rule which we should call a rule of substantive law; but he was for ever busy with new devices for enforcing the law. Much of what he did, much that was to determine the fate of our law is after ages, was done in an informal fashion without the pomp of legislation. A few words written or but spoken to his justices might establish a new mode of procedure. There would be nothing to be proclaimed to the world at large, for in theory there was no change in the law; and yet very surely the whole of England was being changed both in form and in substance. . . . " Id. at 145. "It is not for us here to relate the events which led to the exaction and grant of the Great Charter, to repeat its clauses, or even to comment on all the general characteristics of that many-sided instrument. . . ." Id. at 181-182. "For in brief it means this, that the king is and shall be below the law." Id. at 184. Many details are still obscure, but in Edward I.'s day it is that our legal profession first begins to take a definite shape. We see a group of counsel, of serjeants and apprentices on the one hand, and a group of professional attorneys on the other, and both of them derive their right to practise from the king either mediately or immediately." "So soon there is a legal profession, professional opinion is among the most powerful of the forces that mould the law, and we may see it exercising its influence directly as well as indirectly. In Edward I.'s day it is impossible to uphold a writ which 'all the serjeants' condemn, and often enough to the medieval law-reporter 'the opinion of the serjeants' seems as weighty as any judgment." Id. at 230.).
Solan, Lawrence M., The Language of Statutes: Laws and Their Interpretation (Chicago & London: U. of Chicago Press, 2010) (From the bookjacket: "Here, Lawrence M. Solan argues that statutory interpretation is alive, well, and not in need of the major overhaul that many have suggested. Rather, he suggests, the majority of people understand their rights and obligations most of the time, with difficult cases occurring in circumstances which we can predict from understanding when our minds do not work in a lawlike way." "We are capable of writing crisp flexible laws, but Solan explains that difficult cases result when the ways in which our cognitive and linguistic faculties are structured fail to produce a single, clear interpretation. Though we are predisposed to absorb new situations into categories we have previously formed, our conceptualization is not always as crisp as the legislative and judicial realms demand. In such cases, Solan contends that other values, most importantly legislative intent, must come into play. The Language of Statutes provides an excellent introduction to statutory interpretation, rejecting the extreme arguments that judges have either too much or too little leeway, and explaining how and why a certain number of interpretative problems are simply inevitable.").
Stout, Lynn, Cultivating Conscience: How Good Laws Make Good People (Princeton & Oxford: Princeton U. Press, 2010) ("Today we see the results of this intellectual evolution. Over the past quarter-century, the precepts of economics have been drilled into the heads of millions of undergraduates and graduate students. A generation weaned on the idea of rational selfishness has graduated from our nation's universities and moved into leadership positions in the worlds of law, business, government, and higher education. They have brought with them an unquestioned belief in the power of material 'incentives' that undergirds almost every policy discussion. Are people cheating on their taxes? Increase the penalty for tax fraud. Are CEOs taking dangerous risks with their firms? 'Incentivize' them with deferred stock grants. Are America's children failing to learn their ABCs? Tie teachers' salaries to their students' test scores." "Largely missing from all this talk of 'incentives' and 'accountability' is any serious discussion of the possibility that we might encourage or discourage particular behaviors by appealing not to selfishness, but instead to the force of conscience. . . . " Id. at 5. "According to [Robert] Putnam [Bowling Alone: The Collapse and Revival of American Community], the single biggest factor in explaining our increasingly Hydish behavior seems to be something Putnam labels 'generational change.' By this, Putnam means the replacement through attrition of an older generation raised during the Great Depression and hardened in the refiner's fire of the Second World War by subsequent generations (Baby Boomers, Generation X-ers, Millennials) that seem far less inclined toward altruism, civic engagement, and trust in others. For some reason, Putnam writes, 'being raised after World War II was quite a different experience from being raised before that watershed. It is as though the post-war generations were exposed to some anti-civic X-ray that permanently and increasingly rendered them less likely to connect with the community'--and , as the evidence shows, also less likely to behave in an unselfish prosocial fashion." "One can easily see how the generation of Americans raised before and during World War II may, through the process of meeting their historic collective economic and military challenges, have developed a stronger sense of common in-group affiliation and a keener appreciation for the importance of self-sacrifice than subsequent generations raised in the relative peaceful and prosperous years that followed. The scientific and empirical evidence surveyed in this book suggests, however, still another aspect of the post-war experience that may have contributed to Putnam's 'anti-civic X-ray.' That element is the increasing dominance of the rational selfishness model in our nation's universities, government offices, and corporate headquarters." Id. at 245-246.) .