10 May 2014


'Law's System: The Necessity of System in Common Law' by Gerald J. Postema in (2014) New Zealand Law Review comments that
T.E. T.E. Holland infamously described the common law “chaos with a full index.” One might detect a note of perverse pride in that quip, something entirely missing from Bentham’s summary dismissal of the common law of his day as harmful fiction. More recently, Peter Birks criticized contemporary common law for its manifest “absence of system,” its disorderly collection of legal categories and miscellany of odd rules and doctrines making it difficult to determine its prescriptions in particular cases with any clarity or conviction. Yet Birks was inclined to think that this grave deficiency was due not to ineradicable deficiencies in common law itself, but rather to inattention and lack of intellectual discipline. He insisted that, with hard work and intellectually responsible, systematic thinking, this garden gone to seed could be tamed, restored to use as a model instrument of the rule of law. For this, a comprehensive, logically coherent, rationally cogent structure of concepts and doctrine — a systematic theory, or rather, map of the common law — was essential, he argued. Such a map promised to provide the discipline manifestly lacking in common-law thinking. Birks proposed a cartographic solution to the historic chaos of the common law. 
Critics of this cartographic proposal argue that it does not merely regiment common-law thinking, but it replaces it with something altogether different. They argue that common law cannot be disciplined by theory or system, because it has emerged over a long period of time through a haphazard historical process, and even more because common law is “a splendidly anti-theoretical contrivance. . . . The distinguishing marks of the common law as an intellectual tradition,” it is argued, “are its resistance to systematization, its refusal to consider more than the case at hand, and the extraordinary weight of inertia with which it resisted attempts at ‘academic’ or comprehensively analytical statements of substantive rules and their presuppositions.” Unlike Bentham, these critics treat this bred-in-the-bone resistance to theory and system not as sufficient cause to raze the obsolete structure and replace it with a fully modern, rational, built-from-scratch code, but rather, like Blackstone, to festoon its ancient, ramshackle ramparts with celebratory banners. 
This debate (or more accurately, this exchange of hyperbolic epithets) obscures the depth and breadth of the common law’s commitment to system and to reflective, theory-inclined practical reasoning in its ordinary practice. Indeed, 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. However, to acknowledge this is not to deny the radical nature of the reform of common-law thinking and practice proposed by cartography partisans, but rather to highlight it and to put into perspective the kind of regimentation they call for. Once we appreciate the nature and scope of any law’s (and hence the common law’s) commitment to genuinely reflective and systematic thinking in its ordinary practice, we will be in a position to assess the merits of the cartographic proposal. I will argue that, while Birks’s mapping of the common law promises theoretical elegance, considerations of justice, integrity, and the rule of law decisively favor the common-law conception of and commitment to system.
Postema goes on to argue that
 the ambition to regiment common-law chaos to system driving Birks’ cartographic enterprise was not uncommon among common-law jurists. However, Birks’ project differs from these various proposals, not because it is far more fully developed, or because it draws inspiration from Roman law rather than nineteenth-century views of science, but because it makes no concessions to what I loosely called the pragmatism of common-law practice as embraced by Langdell, Holmes, or Pollock. 
Birks’s aim was to reduce the private-law doctrines of (English) common law to rational order, to abstract from the particulars of cases and rules to reveal the scaffolding of implicit concepts and to put them into a manifestly rational order. He regarded this as kind of logical mapping, as an exercise in value-free conceptual classification. The task was not merely to provide a convenient or efficient means of retrieving rules and doctrines from storage, nor was it to derive the core principles of law from foundational moral notions or principles; it was not meant as a retrieval device since such a device is not theoretical at all — moreover, now we can write software to do that job — and it not a matter of deriving principles from more fundamental moral standards because that project is theoretical in the wrong way, relying too heavily on contested moral notions. Law, after all, is meant to settle matters, not to fund endless debate, in his view. Birks took Gaius’s work on the Roman law and Linnaeus’s work on biological phenomena as models for his work. “Abstract rationality” and “logic,” not, as Holmes insisted, “experience” or “empiricism,” were the tools. The aim was to construct a scheme or map of core concepts of private common law that was exhaustive (i.e., comprehensive in scope), expressed in a hierarchy of concepts, related by logical relations of inclusion or subsumption rather than justificatory support or dependence, defining exclusive categories, which allow no overlap or extension of content across categories. The aim was to explain the content of existing private common law in terms of concepts and categories based on “similarities that really matter” and dissimilarities that mark “real differences,” but which do not depend on morally substantive values or principles. That is to say, the method was meant to be value-free, enabling lawyers and students of law to identify key legal concepts and to see how disparate parts of the law fit together without having to look to the principles which purport to justify them or the norms they comprise. Once completed, the map was meant to offer lawyers and judges a framework from which to work out clear and determinate solutions to (all?) legal problems. The map, rather than any intuitive, common-law situation sense was to guide lawyers and judges in assessing legally relevant similarities and differences and locating concrete cases under governing legal norms. Finally, although Birks advanced his preferred map as a tentative hypothesis, open to further refinement, he did not shy from proposing to reshape and even to reject long-established legal categories. The enterprise of mapping the common law was, as he practiced it, not merely expository, in Bentham’s terms, it is also self-consciously critical and revisionary.