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Report No. 95

3.29. Stability and change.-

The emphasis placed above on the aspect of consistency1 does not mean that there should be no new developments in constitutional adjudication. However, it is important to note the precept that "the court is to decide not by what is good, or just or wise, but according to law, according to a continuity of principle found in the words of the constitution, judicial precedents, traditional understanding and like sources of law".2

It would, thus, seem that the Court has to maintain a balance between stability and change-an aspect frequently emphasised. This aspect assumes importance because, to quote William Hurst, "when you are talking about constitutional law, you are talking about the balance of power in the community and the question of how you find meaning boils down completely here to who finds the meaning".3

Two opposites have to be reconciled by the judicial process-stability and certainty. This may be true of other fields of life also. As Whitehead4 has observed: "There are two principles inherent in the very nature of things recurring in some particular embodiments, whatever field we explor.- the spirit of change and the spirit of conservation. There can be nothing real without both. Mere change without conservation is a passage from nothing to nothing. Its final integration yields mere transient, nonentity. Mere conservation without change cannot conserve. For after all, there is a flux of circumstances and the freshness of being evaporates under mere repetition."

1. See para. 2.23, supra.

2. Archibald Cox The Warrant Court-Constitutional Decision as an Instrument of Reform, p. 21.

3. William Hurst, quoted by Raoul Berger Government by Judiciary: The Transformation of the Fourteenth Amendment, (1977), p. 369.

4. A.W. Whitehead Science and the Modern World, (1925), p. 281.



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