Law's System: The Necessity of System in Common Law

New Zealand Law Review, Forthcoming

UNC Legal Studies Research Paper No. 2324438

29 Pages Posted: 21 Nov 2013

See all articles by Gerald J. Postema

Gerald J. Postema

University of North Carolina - Philosophy

Date Written: September 11, 2013

Abstract

T.E. Holland infamously described the common law “chaos with a full index,” and critics from Bentham to Peter Birks have criticized common law for its manifest absence of system, its disorderly collection of legal categories and miscellany of odd rules. Defenders of contemporary common law celebrate its resolute anti-theoretical stance and resistance to systematization. However, this characterization of common law, shared by defenders and critics alike, is greatly flawed. Common law is deeply and pervasively committed to system, although this commitment has not been recognized by modern positivist legal theory. Law of any jurisdiction, because of features essential to its distinctive mode of operating and because of the need to maintain its integrity, cannot ignore the demands of system. Moreover, distinctive modes of common-law reasoning presuppose and respond to the demands of system, while at the same time retaining a salutary pragmatism and wariness of global theorizing.

Keywords: analogy, archetypes, coherence, discordant norms, elegantia juris, gravitational force, integrity, legal reasoning, normative guidance, positivism, principles, de facto systematicity

JEL Classification: Z00

Suggested Citation

Postema, Gerald J., Law's System: The Necessity of System in Common Law (September 11, 2013). New Zealand Law Review, Forthcoming; UNC Legal Studies Research Paper No. 2324438. Available at SSRN: https://ssrn.com/abstract=2324438

Gerald J. Postema (Contact Author)

University of North Carolina - Philosophy ( email )

Caldwell Hall
CB #3125
Chapel Hill, NC 27599-3125
United States

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