Wednesday, June 29, 2011

Has The Law (caps) lost meaning?

I would normally discuss this matter on my main professional blog and I did refer to it there in passing in If you have a hammer, everything looks like a nail, but I try to avoid exposing my confusions in that environment!

So what's all this about?

In The Art of Law, Legal Eagle followed up an earlier post of mine. Reading that post raised a real confusion in my mind. Simple put, what is The Law?

Now this might sound a bit stupid, so let me illustrate. I am speaking of common law countries.

Many, if not most, discussion on law centre on the courts, litigation and the adversarial process, yet a large proportion of law and legal matters is far more focused on facilitation of normal transactions.

A considerable quantity of law is actually concerned not with the law but with other disciplines. Take competition law. There questions such as the definition of markets are critical. While the law has a force, economists and economics are central.

As I understand it, and I am not a lawyer, common law centered on the role of precedents, on decisions by judges about cases based on general principles as defined through practice. Today, lawyers are more and more involved in simply advising on the meaning of specific laws or regulations.

Legal practice has fragmented into myriard fields determined not so much by law as by subject areas of legislation. Whereas lawyers used to follow decisions of courts, and they still do if to a diminishing extent, now they have to respond to an everchanging melange of discussion papers, laws, regulations, processes and reviews.

When I talk to my my legal friends, they talk about The Law as if it still exists. Yet when I listen to them, they actually talk about the laws all lower case. The Law may still exist, but it seems to me that it is a much dimished creature.

Or am I just confused? 



Legal Eagle said...

"The Law" is a human construct, a convenient personification of something which doesn't really exist. I think it's convenient for us lawyers to pretend it does exist, though.

People have been trying to codify "the Law" into something coherent since the Code of Hammurabi. Generally, though, even when one does codify law into simple principles (eg, European civil law) an accretion of exceptions and interpretations builds up around it, because it's hard to foresee all eventualities or all the ways in which someone might interpret it.

In terms of Australian law - yes, it is more and more statute-based. But there's a complex interaction between statute and judge-made law. Even in areas which are entirely governed by statute, the content of the statute is affected by the way in which judges interpret it in court. In tort law, which I taught last semester, it was born in the common law, then the legislature intervened in various ways (e.g. to abolish contributory negligence as a total defence in negligence law) then the courts interpreted those provisions in court in ways which affected the way in which they were administered, and then the legislature intervened again (with tort law reform) and then the courts are now interpreting it again.

"Front end" (transactional) law can't ignore the back end and what the courts say about a statute when it is tested in court, because what the courts say about statute affects what it is. Sometimes the courts don't say much, to be honest. But in an extreme example, it's no good applying a statute as the law in your agreement if the High Court has recently ruled the statute is unconstitutional and therefore void.

As you point out, law also involves consideration of many other disciplines and issues which affect the human condition: economics, morality, sociology, psychology. To my mind that's one of the things which makes law so fascinating!

Jim Belshaw said...

Nice points, LE. I will respond properly later from the office.

Jim Belshaw said...

LE, I agree with your points. However, I am still puzzled.

Leaving aside questions of customs vs law and of customary law, I would argue that the Aborigines had codified laws in the sense of rules with sanctions, all legal systems are in a sense models, abstractions. This holds for both the concept of law and the way law is practiced.

Those models link to the society that created them. As society changes, both law and the practice of law changes. But what happens if a disconnect emerges between the society and the model?

I suspect that this is happening.

I say this because the sheer volume of legislation and the rise in complexity in economic and social structures has led or appears to have led to a proliferation of specialisations in which the idea of The Law or even fields of law appears to have been lost.

As you know, I understand the economics of the legal profession fairly well. I also have a reasonable understanding of the impact of new technology, although I am concerned that this is actually automating and maintaining bad practice. What I am struggling with is the feeling that law as a field of knowledge has become so fragmented that lawyers themselves have lost sight of linkages.

Perhaps I'm wrong. But when I see a young lawyer who understands in detail one section of a single act and the formal processes around it yet who cannot see broader relationships I get frustrated and feel that there is something wrong in the state of Denmark.

Anonymous said...


I’m wandering off your particular point of discussion, but I thought I’d add my tuppence worth as to what actually frustrates me about ‘The Law’ – as you seem to be using that term.

There are three things:

1) It changes. At the stroke of a legislative pen you can find yourself having to realign plans for outcomes projected years into the future, based upon existing code which, at the whim of the current political party, becomes disadvantageous.

2) It sometimes pays little regard to what I’d term ‘justice’. Penalties and resolutions imposed have regard for surrounding circumstance; but are inconsistently applied; are ‘too human’, in other words. It claims an omniscience, reverance (re this, see contempt of court), but every day demonstrates human fallibility: arrogance, mercy, inconsistency.

3) It reinterprets itself, endlessly - and seems quite proud of itself in doing so.

None of which is much to do with your post; but what else is new?


Winton Bates said...

<< "The law is a human construct ..." >>

Could we not say that the law is discovered? Judges and legislators make mistakes. But others come along afterwards and correct their mistakes. So, we tend toward discovery of some rules that works for the benefit of most people most of the time. Or, is that too optimistic?

Legal Eagle said...

Jim, the difference between law and lore, as it were, is an interesting one. I think it gets more difficult to have a law which reflects the culture when the culture is very large and very diverse. It's easier when you have a small tribe of people.

Still if the law doesn't reflect societal mores you are correct that it doesn't work so well.

Personally I'm not a big fan of over-legislation. It does tend to shift with the ruling political party. I hate it when you get down to s 526AVX(a)(iv), it's a sure sign when you've got legislative provisions which are so labelled that it has become too complex and should be razed to the ground... They never seem to clean it up, and sometimes they really don't seem to have thought about the implications that matter... /rant over

Yeah, I think there's too much legislation, and it simply isn't worth it, because half of it doesn't work. I'd prefer a couple of really thoughtfully drafted statutes to 100 cruddy ones. Ah well, I can dream.

Legal Eagle said...

Winton, I wouldn't say there is a law out there to be discovered independently of people. My studies in comparative law indicate that there is an almost infinite number of ways of doing law.

Although interestingly, in the area on which I wrote my thesis, the French and Germans have quite a different way of looking at contract. The starting point is that if you breach the contract, you should perform your obligation, whereas the starting point in the common law is that if you pay damages when breach occurs. However, both the general rules become so hedged around with exceptions that funnily enough, they start to look very much like each other when you get down to tin tacks. So maybe there are some basic rules which need to be there for us to be able to make voluntary agreements. I don't know. I think the law just evolves that way over time - it's a bit like Darwinism for law - over a long time, the bad laws drop off, the necessary exceptions flourish.

I'm a utilitarian, by and large, I think the rules should be for the benefit of most of the people most of the time where possible, with exceptions which are not overly complex but which ensure that the rules are just. Ah, again, I can dream...

Jim Belshaw said...

Hi KVD. On the first, blame the lawmakers!

The second raises two sets of issues, one set dealing with justice, the second inconsistency. Putting justice aside for a later discussion, the inconsistency actually links to your third point and to Winton's comment and LE's response.

Putting aside the concept of progress, something that I will deal with in today's post, I have always thought that one of the strengths of the British legal system lies in the way that it tends to be self-correcting and responsive over time.

Like LE, I don't think that there is such a thing as law waiting to be discovered. However, a legal system that has the capacity to evolve, to lay down general principles, is no bad thing.

LE used the word rules. The problem with rules based as opposed to principle based approaches is that rules based approaches are far more rigid. They may encourage more consistent application, but tend to lead to variable and inconsistent results. Truth in sentencing and three strikes and you are out are examples.

To my mind, one of the problems with the constant expansion of prescriptive laws and regulations lies in the way it reduces the flexibility of the legal system. Instead of having a body of discovered law, to use Winton's phrase, everybody ends by responding to a growing volume of complicated and often disconnecetd legislation.

Legal Eagle said...

Jim, that's why I'm a common lawyer - because it is more a thing of principle - an organic kind of growth. Yes, it can be unresponsive to broader social issues (because it depends upon particular disputes coming before the courts) and yes, at times it is necessary to have legislative intervention to fix certain problems in the common law.

I am a big picture person. I vastly prefer a general principle and then leaving room for exceptions to develop over time.

Jim Belshaw said...

Definitely a common hymn book, LE!