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 Jeremy Bentham to Peter Birks have criticised common law for its manifest absence of system. Defenders of contemporary common law celebrate its alleged resolute anti-theoretical stance and resistance to systematisation. However, this characterisation of common law, shared by defenders and critics alike, is greatly flawed. Common law is deeply and pervasively committed to system. The 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 theorising.

Postema, Gerald J, Law’s System: The Necessity of System in Common Law. New Zealand Law Review, Volume 2014, Number 1, May 2014, pp 69-105.

First posted 2014-05-20 05:37:38

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