Patchwork Law Reform: Your Idea is Good in Practice, but it won't Work in Theory
Osgoode Hall Law Journal, Vol. 44, pp. 11-52, 2006
43 Pages Posted: 16 Jan 2009
Date Written: 2006
This article elaborates a conception of law reform that is pluralistic, interactional, non-formulaic, attentive to implicit normativity and not exclusively instrumental. It argues that law reform practice is always informed by theory. Where theory is inadequate, law reform practice is likely to result in a sub-optimal patchwork. An appropriate theory of law reform will have the following attributes. First, it will have a respect for human agency. This respect is made manifest in law reform on dimensions of form, substance, purpose, authority, mode, regime, sites, and system. Second, an adequate practice of law reform must attend to structural features of legal institutions, and in particular the systematic and symbolic character of explicit reform to legislative texts. It must also account for the dimensions of interaction between different normative institutions, and various types of implicit law reform activity that does not appear in changes to legislative texts. Finally, it must be grounded in a sensitivity to socio-cultural context. It is argued in conclusion that an adequate theory and practice of law reform will be less reform than re-substance, and a transformation in ideas of law will engender a transubstantiation of its practice.
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