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Vanderbilt Law Review

First Page

265

Abstract

The term "stability" pertains more directly to the physical sciences than to law. Offhand, one associates stability with rest and instability with motion. Gibraltar is stable; a rowboat in rough water is not.There can be, however, stable motion and precarious rest. The earth moves at more than a thousand miles a minute in a stable orbit, and a railroad train thundering down a smooth and level track at ninety miles an hour may have a high degree of stability. On the other hand, the mass of rock and earth that recently plunged into the water behind an Italian dam killing three thousand people had obviously been resting all too precariously. When Roscoe Pound gave to the law the seemingly paradoxical charge to be stable and yet to move, he was rejecting the idea of a Gibraltar-like law indifferent to changes going on about it and he was rejecting also a vacillating legal system which would yield like a row-boat to every wave of current events or public passion. He was asking instead for the kind of stability in motion which consists of moving steadily, predictably, and purposefully forward along the track of progress. Natural factors which make for stability in the law outnumber and outweigh those productive of change. So far as rules of law themselves are concerned, there is an urgent need on the part of the people who live by them and on the part of the lawyers who work with them that they be definite, consistent, understandable, and predictable. It has been said with much validity that a definite, certain rule of law, although a bad one, is preferable to an uncertain one. It was this need that led to the development of the Justinian Code, and it is the principle underlying the common law principle of stare decisis.

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