Gerald Postema, ‘Law’s System: The Necessity of System in Common Law’

TE 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.

Postema, Gerald J., Law’s System: The Necessity of System in Common Law (September 11, 2013). New Zealand Law Review, Forthcoming.

First posted 2013-11-22 16:37:18

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