Law's System: The Necessity of System in Common Law
New Zealand Law Review, Forthcoming
29 Pages Posted: 21 Nov 2013
Date Written: September 11, 2013
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: Suggested Citation