Inheritance Law, Lawmaking Hierarchy and the Problem of Doctrinal Change

Abstract:     
This article addresses the problem of doctrinal change. More specifically, the article explores the question of how the existence of a pyramidal legal system -- lower courts below appellate ones, below a legislative body at the pinnacle -- affects the process, and even the course, of the evolution of legal doctrines.

We are used to thinking of the mechanism of doctrinal change as a simple process of overruling (or modifying), or of superseding by statute, rules previously in force. And so it is, when a lawmaking body engineering a change-of-law decides to revise its own rule, or the rule of a subordinate lawmaking body. On the other hand, when the acting lawmaking body confronts a rule previously established by a superior lawmaker, but which the subordinate body deems nonetheless to be obsolescent, the mechanism of overruling is unavailable. Subordinate lawmakers must instead choose among a number of less simple, but more interesting, options.

One option is for the subordinate lawmaker to continue to apply the superior rule and to await its reconsideration by higher authorities. Typically in such a case, the subordinate endeavors to signal to higher authorities its dissatisfaction with the rule at issue. At the other extreme, the subordinate lawmaker may undertake to revise the rule surreptitiously, by construing it to mean something different from its previous interpretation. Finally, the subordinate lawmaker may endeavor neither to apply nor to reformulate the rule, but rather to circumvent the rule. In that case, the lawmaker seeks to develop some other rule over which it does hold sway in a manner serving to avoid or to neutralize the troublesome superior rule which the lawmaker continues formally to observe.

The article probes this trio of alternative moves, with particular emphasis on the third one, which has received insufficient attention in the jurisprudential literature. The article highlights the structural earmarks of rules-circumventing-superior-rules, as well as their structural ramifications. And the article considers the dilemma faced by a subordinate lawmaker: To wit, which of the three options at its practical disposal constitutes the most effective response to legal obsolescence?

Inheritance law provides a case study of this problem.

Working Paper Series