Oxford University Comparative Law Forum
Critical Approaches in Comparative Law
by Iain Stewart1
(2002) Oxford U Comparative L Forum 4 at ouclf.iuscomp.org | How to cite this article
Table of contents
Summary | Sommaire
discipline comparative law seems still to be
distinguishing itself from lawmaking. In this paper I investigate
theoretical reasons for this and propose a new type of concept of
law, which should secure that distinction. This proposal is also
made for further theoretical reasons, as well as for empirical
reasons drawn from the structure (or rather lack of structure) of the
Australian legal system, being both a common-law system and a system
with a peculiar history.
La discipline droit comparé paraît être
encore en train de se distinguer de la création du droit.
Dans cette intervention jen recherche les raisons dordre
théorique et propose un nouveau type de concept du droit, qui
devrait assurer cette distinction. Ce propos sappuie
également à dautres raisons du même ordre,
et en plus aux raisons dordre empirique qui proviennent de la
structure (ou bien du manque de structure) du système
juridique australien, étant à la fois un système
de common law et un système marqué dune histoire
1. Approaches in Comparative Law
If I were you, I wouldnt start from here
(alleged Irish saying)
1.1. Le Droit Comparé nest pas un Droit
Comparative law, Pfersmann has recently
observed, is an odd discipline. Long considered to be exotic
and irrelevant to real issues, today it is a required component of
university curricula and legal practice. It has, he says,
become indispensable for the researcher, the judge and the
legislator, especially as globalisation turns legal idiosyncrasies
into obstacles. It
has given rise to great hopes and ambitious projects,
yet it still relies upon the weakest of epistemologies.
Judging by what is undertaken under the label
comparative law, the following beliefs can be found to
predominate, more or less implicitly, in discussion about it: (1)
comparative law is a transnational legal system; (2) it is a science
facilitating the unification of different legal systems or
anticipating the unification (or, failing that, the homogenisation)
inherent in the evolution of legal systems on a global scale; (3) it
is the science of foreign legal systems; and (4) it is a science that
assists in resolving individual cases before the courts.2
Pfersmann finds all four of these beliefs
inadequate. Their primary fault, in his view, is that they proceed
from the illusion of a legislator-jurist (lillusion
du juriste-législateur), whether through projection of an
ideal order or through claiming capacity to produce one. They
involve the naturalistic sophism that induces the jurists
habitual fantasy of believing oneself to be a producer of ideal rules
inasmuch as one is an expert on positive rules.3
Pfersmann identifies the problem as epistemological and ontological,
and tries to locate its source in the nature of a positive legal
order. I will investigate this identification.
The illusion of a legislator-jurist, he is
saying, is on one level an illusion as to achievement. There is a
projection of an ideal legal order, so that
comparative law is a transnational legal system. His
proposition may seem overstated. Yet it does appear to fit the most
prominent founders of the discipline comparative law.4
And, even though such an outlook is no longer espoused, it might not
have been effectively superseded. For Pfersmann is only one of
several writers who still find it necessary to stress that
comparative law is not a type of law but a discipline.5
The illusion is implicit in the very label comparative law
or (which the former translates) droit comparé.
The illusion persists as an implication of the label. Even if
nobody now follows that implication, it may remain necessary to warn
against doing so.
The other level that he identifies is an illusion as to
capacity. On this level, however, it seems to me that there is not a
complete illusion. For there is a sense in which a jurist can
make law: the formulation of legal doctrine (la doctrine).6
If a positive legal order is understood in terms of sources
and if legal doctrine is elevated to being the primary source, then
doctrine written by the comparatist could be seen as transnational
That vision, however, would be doubly flawed. First,
the norms so produced might not clearly be legal. They would neither
fit into the traditional distinction between the natural and the
positive nor include the attribute of coercion, through which a
positive legal order is ordinarily shown to exist. Second, even if
the norms so produced would be legal, they would not have a
specifically comparative character. For the act of comparison itself
does not create norms. It is, at most, one element in the production
of a norm. Once a norm is produced, any prior act of comparison is
So, comparative law is not a body of law: le droit
comparé nest pas un droit. There is no
comparative legal order. Comparative law is a
discipline. It consists of the use of comparative methods where the
comparison is not confined to a single legal order. The act of
comparison does not, itself, produce norms. At the most, it
contributes to the production of norms within an existing national or
transnational legal order. And it does indeed perform that function.
How, then, did the illusion that comparative law is a
body of law arise? Nobody confuses a proposed legal norm with an
actual one; everybody knows the moments of constitutional adoption,
statutory enactment and pronouncing of judgement. Nor does it seem
plausible to suppose that any comparatist has seen a divine will,
Zeitgeist or other telic impulse refracted in the sort of
technical detail through which legal comparison may be most
constructive. Excepttaking a hint from Pfersmanns
reference to evolutionfor the evolutionist
ideology, a background assumption of the era in which the discipline
of comparative law was founded and sometimes tendentiously labelled
Social Darwinism. Its high priest was actually not
Darwin but the now almost forgotten Spencer, whose combination of
philosophy, religion and unified science included a doctrine of
What may have happened in comparative law is that an idealisation of
positive legal order was projected as the content of that natural
so that the comparatists statement of the ideal positive law
would function as a statement of that law as natural. The habits of
idealist iusnaturalism would have been transferred into a primarily
1.2. Legal Orders, Closure and Alterity
More interesting now is the possibility that Pfersmann
may be correct so far as he identifies a continuing risk in a
combination of transnationalist legal doctrine with what he terms an
epistemological and ontological closure of legal
The closure that he identifies is, he says, formal.
Legal systems are formally closed, in that a norm is
legal solely in virtue of a validity with which it is endowed by a
pre-existing legal norm. At the same time, legal systems are
substantively open in that any content of any
possible legal norm can become that of a norm in an existing legal
system, unless it conflicts with a norm already in force in that
system. If there are incorporation rules, the foreign rule
that is incorporated in accordance with them will be valid
within the system that incorporates it, as a rule of that
system, by reason of the rules of that system and with
no effect upon the closure of the latter. Pfersmann thus
prefers a presupposed ontology of the closure of chains of
validity, which would be a constitutive ontology.11
In this constitutive capacity, nonetheless, he finds an
extremely serious difficulty: that, for a particular legal
system, such an ontology would not constitute the sole
conceivable model; obviously, if one is allowed to
determine the constitutive properties of any object, nothing will
prevent one from doing so in another way than that proposed here.
His response to the difficulty is elliptical yet illuminating:
However, he says, the problem is then merely
inverted and it is the expressions national laws (droits
nationaux) or legal systems that no longer
He does not explain why such an inversion would take place, but
appears to say simply that to admit alterity into legal ontology
would render incomprehensible these basic notions of legal science.
He might better have asked: how could one validly object, on the
criteria of a modern science, that ontology (or epistemology) has
been opened up to alterity? It would not follow that all
alternatives would be of equal value. If such an objector were to
share Dostoyevskys old moral fearif God did not exist,
everything would be permitted13one
could reply that in science, at least at this basic level, one should
be avoiding moral censure anyway. At any rate, it is a while since
the Sovereign King lost his head and the God-State vanished away.
How is it, even so, that alterity is still to be introduced and that,
with its introduction, such basic categories of legal science would
cease to make sense?
It is still to be introduced into legal science.
Behind the problem of one legal order being closed to another lies
the problem that a legal order is closed to everything but itself.
On a prescriptive plane, that might not be a problem: after all, one
could say, the very aim of law, with regard to a particular sphere of
behaviour, is to secure conformity to a particular norm and not to
any conflicting norm. The problem is rather that this exclusivity
also appears on the descriptive plane. I will not argue for the
standpoint of a detached observer, which is not feasible where what
is to be observed is social meaning. Rather, I shall note (as I have
put it elsewhere) that in contrast with legal science
every other science of meaning (with the possible
exception of theology) accepts, so thoroughly for it to be banal,
this principle: that the meanings composing the perspective, the
framework of investigation, shall be, at least logically, independent
of the meanings that are the subject matter of the investigation;
which has the corollary that the meanings that are the subject matter
will be, in the first place, somebody elses.14
I would contradict this principle if I were to claim
that it could not be formulated differently. Nonetheless, adherence
to this sort of formula seems to me to be a commitment to the
independence of thought that is a necessary qualification for a
position in the academy.
The plight of legal science is that, when this principle
has been adhered to, it has been adhered to in two ways and neither
of them has been successful. The difference between those two modes
of adherence to the principle is marked by whether the scholar also
attempts adequacy to the phenomenon that is socially called
lawthat naming being an element of the
phenomenon. This phenomenon (I shall say by way of empirical
intuition, and there seems no other way to recommence) consists
centrally of norms that appear as simply to be obeyedto
be obeyed unconditionally and for no other reason than
that they are law.
The most rigorous attempt to achieve both adequacy to
this phenomenon and descriptive alterity, Kelsens pure
theory of law, foundered in self-contradiction.15
Others who have been committed to descriptive alterity have
abandoned adequacy to the phenomenon and dissolved the concept of law
into a broader normativity or into some even wider categorysometimes
pursuing the fallacy that breadth is intrinsically a desirable
quality of a definition.16
The intermediate path of contextualisation only
brackets and postpones the issue: so long as the principle is not
applied in constructing the very concept of law,
attempts to amplify that concept with historical or social context
will be plagued with conflict between effects of that principles
absence in the core of the model and effects of its presence in the
disciplines that are summoned to fill the model out.17
Alternatively to using the principle at all, adequacy to the
phenomenon is desired while descriptive alterity is evaded in
preference for a regression to apologetics.18
Pfersmann has a separate objection to the third belief
that he lists, that it is merely incoherent. Every other
legal system, he observes, is foreign in relation to
the one that is the point of departure, without there being any
scientific reason for so privileging the latter. The apparent
foreignness of any other system is merely the consequence of
the fact that different legal orders exist in different places and at
This seems to me unfair to the extent that it is surely legitimate
to undertake legal comparison with a view to reforming the legal
system under which one lives and in relation to which every other
legal system is foreign. Yet the criticism does seem
fair to the extent that it questions the apparent obviousness of a
commitment to the home legal system. Is that commitment, in its
obviousness rather than in being the outcome of a decision, a
consequence of a closure of the home legal order to alterity, whether
foreign or domestic? If so, the comparatist exercise intrinsically
involves the identification of alterity.
The closure of law can then be maintained only by a
subsumption: the conflict between the closure of any legal order and
the comparatist recognition of alterity might be resolved by
supposing a subsumption of both within a higher legal order. In this
way, the temptation to suppose a body of comparative law (un droit
comparé), actual or at least possible, may arise from the
very exercise of legal comparison.20
Either one recognises an already existing higher legal order, under
which the products of comparative law can be subsumed, or the
exercise of legal comparison may be assumed to produce a higher legal
order, consisting of very general norms, that would accommodate the
more particular products of legal comparison.
When the temptation to subsume is resisted, however, the
comparatist exercise remains intrinsically critical of legal closure:
even though the closure is at first sensed only as parochialism, the
critique commences just as a feeling of inadequation, and only
through development of the critique does either the closure become
visible as closure or the critique understand itself as critique.
By that point, however, the stakes have become very
high. Intuitively, closure is a bad thing while critique is a good
thing, even if all that it does is to reveal closure. But then, if
law is characterised by closure, to that extent law is a bad thing.
At best, it is a necessary evil. Critique might identify both the
evil and its necessity. Now, that can readily be done with regard to
the coercive aspect of law, portraying it as social self-defence.
But closure is in a different league: it seems to involve belief.
And how can a belief be a necessary evil?
Pfersmann does not follow through from his
identification of closure and preference for a constitutive ontology.
In the end, the comparison of legal orders is for him their
differentiated conceptual interpretation (l'interprétation
The practical contribution of legal comparison, which should not be
political, can nonetheless be technological: by examining a variety
of legal systems, the comparatist becomes able to advise how, in any
one of them, a particular reform may have a particular outcome. The
value of that outcome will be a separate, moral issue.22
Yet differential interpretation may be just what is excluded by
closure. And I suspect that one avenue that legal closure closes off
is that of a technological neutrality subject to moral choice. That
which is simply to be obeyed by all is also simply to be
served by the specialist.
Moreover, these issues of comparative law appear also,
and if anything more starkly, in the construction of general theory
of lawfor comparison is a necessary element of generalisation.
General theorisation of positive legal orders is thus possible in
either of two ways. Either through subsumption within a higher legal
orderbe that an order of natural law or the international
legal order in a monist perspective. Or through a recognition of
alterity and, eventually, of closurewhere that recognition
takes place within a theoretical framework that is independent of its
subject matter. In these respects, general theory of law and issues
of the identity of comparative law are mutually relevant, both
through analogy between the two disciplines and so far as the
exercise of legal comparison is a necessary element in
The curricular status of comparative law may become
clearer in this light. If the curriculum is dedicated to producing
lesser servants of the home legal order, a study of comparative law
may be irrelevant and even threatening. It can become relevant when
the student is encouraged to adopt a perspective of law reform or to
consider that they might become a legislator or a judge, more
relevant when the home legal order is in fact being subsumed under a
higher legal order,23
and vital when the science of law is presented as grounded in general
theory. In addition, students of general theory within a curriculum
devoted to a common-law system must be introduced to the western
legal traditions romanist mainstream, to which most general
If, then, the game is closure versus
alterity, Pfersmanns indication is that the closure is
located in the relations between legal norms. However, the case of
the common-law systems indicates that this is not generally correct.
I will take the Australian legal system as an example. Afterwards I
will suggest that, in any legal order, the closure is to be found not
in the relations between norms but in the norms themselves. Then I
will examine some of the implications of that view for the discipline
of comparative law.
2. A Lack of Structure
It is conventional to inquire into the structure
of any legal system, assuming that a legal system
is the behavioural embodiment of a legal order which is
structured primarily either through deduction or through
But common-law legal orders in general, and the Australian legal
order in particular ways, are remarkable for their lack of
structure; it is even difficult to identify them as systems.
Certainly, there are legal systems in an
administrative sense: there are the expectable persons
of law (legislators, ministers, judges, lawyers, police officers),
places of law (parliaments, courts, prisons), and things
of law (books, guns, robes, uniforms and cars that go da-da,
da-da at any time of the day or night). But it is hard indeed
to discover a structure of normative meaning. Superficially,
there is the Stufenbau common throughout the western legal
tradition: a constitution (usually), statutes and regulations, and a
hierarchy of judicial authority. But the constitutions, statutes and
regulations are understood to mean what the judges say (or probably
would say) that they mean. And, when that is seen, the picture of a
hierarchy breaks up. Firstly, the judiciary insists that it is an
autonomous source of law. Secondly, what common-law judges say is
difficult to understand as distinct norms or,
consequently, as involving distinct relations between norms.
In what follows, I shall mean by legal order
a set (ensemble) of legal norms and by legal system
the social behaviour that is the application of those norms by
persons designated in terms of the legal order as officials.
2.1. Common Law
2.1.1. The Common-Law Mind
Common-law thought, at its core, is a process neither of
deduction nor of induction but of manipulated analogy.25
It is still basically exegetical, as throughout the western legal
but analogy has come to predominate.
The model is the curial process, in which the business
of counsel is to persuade the bench of an analogy, being an earlier
decision of that court or of a higher court, that fits.
The judgement then has to provide reasons for accepting one analogy
and rejecting others. Since the lines of analogy will be primarily
factual, the judgement has to set out and examine the facts of the
particular case in detail. In a major case before an appellate
court, each judge can and frequently will provide a separate
judgement, giving their own assessment of the facts and
interpretation of the applicable law. It is possible for the whole
bench to agree on the order to be made, even though no single line of
reasoning commands majority support. For counsel to take an earlier
case as an analogy is thus usually to select a particular judgement
in the case. Opposing counsel might accept that the case is in
point but argue that there is a closer analogy with another
judgement in that case. Judgements are very long, by European
standards: where most or all judges give separate judgements, the
whole decision can run to several hundred pages.27
Today in Australia, decisions of the superior courts are immediately
put online. Also available online, as soon as possible after each
days argument, are transcripts of the proceedings of the High
Court (the federal supreme court). The transcripts can turn out to
be more important than the decision itself, as a pointer to future
decisions, if the decision avoids or downplays an issue that had been
My point, briefly, is that in a common-law system it is
generally difficult to identify distinct norms. Both
in case law and in the judicial interpretation of constitutional and
statutory provisions, it would be more accurate to identify
normative patterns. This is not to say that
common-lawyers literally think in pictures,29
although they may sometimes do so when making factual analogies.30
Rather, it is to say that they think in patterns rather than
propositions, that they match more than infer. The skills of
matching (and of denying a matchdistinguishing)
are largely tacit and are acquired by imitation.31
To the extent that a common law system does not consist
of distinct norms, neither can it consist of distinct relations
between norms. Hence it is difficult to determine a sense in which
one can speak of a common-law legal ordera sense
in which one can say that a common-law legal system has a structure
in the sense of being an order of normative meaning.
From a practical point of view, the reliance on analogy
makes the law highly flexible, to a degree that a civilian can envy.32
On the other hand, it leads to several types of obscurity:
- Lack of rational clarity: analogy has a limited
capacity to state a general rule or principle, which would belong to
- Literal obscurity: a judgement of a superior
court is incomprehensible to anybody without a legal qualification;
and, since the law is not what was decided yesterday but what is
likely to be decided tomorrow, one needs to be able to predict the
analogies that will be entertainedand old cases never die.34
- Lack of moral or political transparency: it is
hard to perceive, under the analogies drawn, by what moral or
political values the judges are guided.
- Unpredictability: this is a defect in terms of
it is also a defect in being anti-democraticso far as it
amounts to dog-law, as Bentham complained so long
These obscurities, however, are a goldmine for the legal
profession. It is rarely possible to discover ones legal
rights or duties reliably without consulting, hence feeing, a lawyer.
This compounds the anti-democratic bias: partly by privileging
those who can afford legal advice and representation37;
and partly because the judge-made law, including constitutional and
statutory interpretation, is then moulded upon the interests of those
who can afford to sue.38
The effect on legal scholarship has been to produce
either doubtfully academic certitude or academic confusion. Either
the legal academic accepts and pursues the centrality of analogy,
which conflicts with scholarly criteria; the judicial process then
tends to be seen as the research process and the legal academic as a
research assistant to the bar. Or the legal academic attempts to
convert matching into inference, which may be scholarly but is doomed
2.1.2. The English Aberration
The historical root of this is what may be called the
English Aberration from the mainstream western legal tradition.
Before the Norman Conquest of England in 1066, English
laws had been substantially codifiedboth by Anglo-Saxons
themselves and, in the north, by Norse invaders.39
The Normans, although not ignorant of the romanist tradition,
overlaid the existing laws with a system of writs that
privileged procedure over substance and a mixture of executive and
judicial power over any form of legislation. This system privileged
analogy in two ways: a writ would be issued if a matter were deemed
either to fall clearly under that type of writ or to be sufficiently
similar to a matter that had earlier been deemed to fall under it;
and a new type of writ could be issued on analogy with an existing
type that seemed not to cover a matter in which it was thought that a
writ should be issued.
Corresponding to the privileging of procedure, there
emerged a legal profession as masters of the procedural game. The
core of the law came to reside in the royal archives of writs and in
lawyers memories and notebooks, recording those forms and how
they were handled. The romanist tradition was not forgotten, even by
The Norman judges were clerics (since few but they were literate)
and acquainted with canon law, which continued in use for family
matters. But, by the time that Justinians Digest had been
generally revived in Continental Europe, the procedural emphasis of
English law and a monopoly of the courts by a procedure-oriented
legal profession were entrenched. The great game could not be
played, because the small game was occupying the court.
The thirteenth-century work attributed to Bracton, which
attempted to recast English law in Pandect mode, fell on stony
So did attempts to move English law back into the mainstream western
legal tradition during the Renaissance.42
The influence of the new physical sciences, to which some lawyers
were major contributors,43
served only to encourage a systematisation of the procedurally
oriented law. Chief Justice Cokes seventeenth-century
Institutes are still cited, as are the eighteenth-century
Commentaries of Blackstone, which served as a handy compendium
of English law for the American colonies and to a lesser extent in
Australia. But Benthams efforts toward actual codification,
in which substance would have been privileged over procedure, had far
more success on the Continent than at home. One current result is
English discomfort (and Scots amusement) in Brussels.
2.2. The Constitutional Structure of Australia44
2.2.1. The Invasion
On 26 January 1788, eleven boatloads of illegal
immigrants landed in a cove on the coast of a great south
land. They unloaded their goods, raised a piece of coloured
cloth on a pole and claimed the country for their king, who was mad.45
They brought with them the law of England, which they made the
general law of the new country. This is sometimes called the
reception of English law, but who received
it? It can be called a reception only in a sense in
which pugilism would illustrate the adage that it is better to give
than to receive.
After some early fumbling, the colonisers gave no
recognition to the normative institutions of the Indigenous peoples.
That would not occur until 1992, when the High Court resurrected for
Australia the old common-law notion of native title.46
The colonial relationship of domination persisted, however, in that
native title is extinguished by any conflicting
non-native title. Neither the courts nor the legislatures have been
prepared to consider any form of Indigenous sovereignty.47
Nor, unlike other parts of the former British Empire, has there ever
been a treaty or similar agreement with the Indigenous peoples. They
are not now mentioned in the Constitution.48
Although the Indigenous peoples were recognised to have become
British subjects, they were almost universally denied the rights of
subjects. Following two centuries of genocide, some degrees of
self-administration have been conceded through regional Lands
Councils and the national Aboriginal and Torres Strait Islander
Commission (ATSIC). Currently, however, the more that ATSIC, whose
leadership is now elected by ATSI people, presents itself as an
instrument of actual self-government, the more the federal government
attempts to reduce its functions and funding. With that marginal
exception, the constitutional structure of Australia consists of
That said, which whitefellas? Although the validity of
the Australian legal order has clearly ceased to derive from British
law, at least in that the High Court has found Australia to be an
independent country and probably no Australian jurist would now make
that derivation, the Australian constitutional structure is still
confused by its imperial origins.
2.2.2. The Substantive Constitution
The substantive constitution (die Verfassung im
of Australia consists, at least, of: the Commonwealth Constitution,
which is s 9 of the Commonwealth of Australia Constitution Act 1900
(UK); ss 1-8 (distinguished as the covering clauses)
of the same Act; the Statute of Westminster 1931 (UK); the Statute
of Westminster Adoption Act 1942 (Cth); the Australia Act 1986 (Cth)
and the Australia Act 1986 (UK); the Royal Style and Titles Act 1973
(Cth); the constitutions of the States; and the Self-Government
Acts of the Territories. As can be seen, this is an odd mixture of
imperial and domestic legislation, composing the substantive
constitution of a country that considers itself, and is considered by
the former imperial power, to be independent.
2.2.3. The Formal Constitution
The formal constitution (die Verfassung im materiellen
of Australia, as has been mentioned, consists of a section of a
British statute. However, the covering clauses are
also constitutionally important: in particular, cl 2 provides that
the monarch of the United Kingdom shall also be monarch in Australia
(although the Royal Style and Titles Act provides for a separate
Australian title). The Statute of Westminster, which Australia
reluctantly adopted after realising in 1942 that Britain could (or
would) no longer provide a military umbrella, reduced Britains
capacity to legislate with effect in Australia. That capacity (among
other things) was finally abolished by the Australia Acts. The
Australia Acts demonstrate the ambiguity of ultimate legal authority
in Australia by being mirror legislationalmost identical
Australian and British statutes. Nothing formally prevents either
the British or the Australian parliament from repealing or amending
its version of those statutes, or indeed the British parliament from
repealing or amending the Commonwealth of Australia Constitution Act.
However, the practical reality is that the British would not take
such action and Australia would ignore it if they did.
2.2.4. Content of the Formal Constitution
More problematical in practical terms is the content of
the Commonwealth Constitution.51
It sets out a federal structure, in which the federal legislative
powers are listed52
and some of them are made exclusive, expressly or by implication,
while most are concurrent with the States, whose legislative powers
are plenary. In case of conflict, federal legislation prevails.53
This document, however, is poorly designed. It is littered with
expired clauses to the effect until the Parliament otherwise
And its structure is obscure, especially after the first three
chapters which appear to apply some version of a separation of
Perhaps the greatest design difficulty, however, is one
that compounds the other problems: this constitution is
exceptionally difficult to amend. A proposed amendment must normally
pass both houses of the federal parliament and be submitted to the
people in a referendum, where it must receive a majority of all votes
cast plus a majority in each of a majority of the six States.56
Of the 44 proposals that have got as far as a referendum, only eight
have succeeded and none since 1977.
2.2.5. The Formal Constitution and Australian Independence
A still deeper problem as to content is that this
document was not designed to be the constitution of an independent
country. What it initially achieved was a restructuring of British
sovereignty in Australasia. New Zealand declined the option of
joining (which remains open); Western Australia joined reluctantly
and at the last minute, and in the 1930s attempted to secede. The
original commitment to British sovereignty is marked in several ways.
One of these is the position of the monarchy. The Australian
monarch, the head of state, is chosen by a country that, as the same
constitution is now interpreted, is a foreign power.57
The monarch, who is rarely in Australia, is represented federally by
(and in each State by a Governor). The powers of the
Governor-General, and powers that can be exercised personally by the
monarch (which as of 1901 would effectively have been the British
government), are substantial and are greater than those possessed by
the monarch of the United Kingdom even in 1901. A proposed
law becomes statute on receiving the Queens59
assent, which is given on her behalf by the Governor-General.
However, the Governor-General may instead remit the bill to the
parliament with suggestions for amendment or reserve the bill for
the Queens pleasure. If a bill is so reserved, the
Queen can take up to two years to assent. Even when a
Governor-General has given the royal assent, the Queen may disallow
the legislation up to a year afterwards.60
There is no reservation, in this regard, as to any particular type
of billeven a money bill or a bill for an
amendment referendum. These regal powers have almost never been
most constitutional experts are content to regard them as dead
letters. But it seems to me a very bad practice to regard a
constitutional provision as a dead letter, since then there is no
limit to the range of letters that can be regarded as dead.
Nor are these letters entirely dead: they continue to
enter into interpreting the federal constitution, so as to reinforce
the monarchical principle against the democratic principle that the
constitution also contains. The conflict between these two
principles came to a head in 1975, on the issue of a
Governor-Generals power to dismiss a Prime Minister. The then
Prime Minister (whose position exists by way of constitutional
convention) did not anticipate that a Governor-General would assume
power to disregard a Prime Ministers advice and dismiss a
Prime Minister who still had the confidence of the lower and more
democratic house of the parliament.62
The reverberations of that crisis have still not subsided: the
immediately relevant constitutional provisions have not been amended,
nor is there agreement on what could replace them.
Another mark of British sovereignty is that the
Commonwealth Constitution contains no provision for an Australian
citizenship: on the contrary, it assumes that citizenship in
Australia will be British nationality. When in the 1940s Britain
began to dilute the nationality on which the sun never set,
along with other countries Australia did create its own citizenship.63
But it is still difficult to see under what Commonwealth legislative
power this statute can be valid. To find validity under the aliens
a power to legislate with respect to Naturalization and
aliens, requires practically a reversal of the powers
originally intended meaninga power to legislate with respect
to the acquisition of British nationality through channels in
Australia and with respect to the handling of people who were not
Such a reversal would set an awkward precedent for interpretation of
the Constitution in generala self-issued licence for the High
Court to reverse the meaning of any constitutional provision at all.
To find validity under the occasionally implied nationhood
powera power to do things that are ordinarily within
the legislative power of a sovereign nationcomes up against a
severe problem of definition. It would be easy to understand the
nationhood power so widely as to outflank the restriction of federal
legislative power to certain topics and thereby almost destroy the
federal structure to the benefit of central government. For this
reason, the High Court has been reluctant to appeal to the nationhood
However, citizenship is not a States issue anyway.
The issue of the federal pattern also arises in
interpretation of the power to legislate with respect to External
The word external was preferred to the more usual
foreign so that the federal parliament could legislate
on relations with other parts of the British Empire, which were not
regarded as foreign. If Australia is now an independent country,
that issue no longer arisesthere are now, indeed, a department
and a minister for foreign affairs. The constitutional
word remains, however, external and it has proved very
difficult to define. For instance: if a matter is external
simply because it is the subject of a treaty to which Australia has
become party, not only could the Australian government concoct a
treaty with some friendly country in order to obtain power to
legislate on a particular topic but, in any case, international
conventions already cover a far greater range of topics than are
listed among the heads of federal legislative power. Examples are
such politically sensitive topics as the environment and racial or
To find that Britain is a foreign power
is, conversely, to assert that Australia is an independent country.
But why is that so and, if it is so, when did it come about? The
High Court found that it has been brought about, at the latest, by
the Australia Act 1986 (Cth), but it argued from the provisions of
However, there may be a shorter way. The preamble to the Australian
version of the Act refers to Australia as a sovereign,
independent and federal nation. This is a statement made by
the Australian federal parliament at the request and with the consent
of the parliaments of all the States.69
I think it can be read as a declaration of independence. Either a
declaration (like that of the USA) by which independence was achieved
on that date or, at least, a declaration that independence had been
achieved by that date. That the statement appears only in a preamble
would not matter in this regard. Nor is it a problem, but rather it
is appropriate, that the British version of the Act has no
counterpart. However, this Australian independence is hard to
reconcile with continuing to permit a foreign power to appoint an
absentee head of state.
The issue of independence or external sovereignty blurs
into that of internal sovereignty. While there is judicial support
for the proposition that, today, the authority of the Australian
Constitution derives from the people,70
that proposition is at odds with the historical evidence.71
The Constitution has never been endorsed by an actual majority of
the Australian people: it was approved by referendum in 1899,
although only 52% of those eligible to vote did so; in addition, few
women or Indigenous people were able to vote and none had been
involved in the drafting. Nor can it realistically be said that
Australians now approve of their Constitution, since few of them are
familiar with it. A 1987 survey found that 47 % of Australians were
unaware of its existence. A 1994 survey found that only 18% had some
understanding of what it contains; only 40% could correctly name the
two houses of the federal parliament; younger Australians in
particular appeared to have a better understanding of the US
Constitution than of their own. The situation may have marginally
improved following the Constitutional Convention of 1998, whose main
business was to design a transition to a republic and in connection
with which every household received a copy of the Constitution; but
the focus of the Convention was narrow.72
Several reasons for this ignorance of the Constitution may be
advanced: Australians general distrust of law and lawyers;
the Australian etiquette of not discussing politics in a pub (the
mainstay of grassroots democracy in Britain); the high level of
immigration; and that, in the near total absence of constitutional
rights, but with an efficient electoral system, the Constitution does
not impinge on peoples daily lives.73
2.2.6. Australia and a Bill of Rights
A different sort of constitutional confusion arises from
the absence of a bill of rights from the Commonwealth and State
constitutions as well as from the Self-Government Acts of the
Territories. Indeed, these documents contain very few provisions as
to individual rights. The restrictions that might have been in a
bill of rights are found, instead, in explicit constitutional
limitations (mainly on legislative powers), in implied constitutional
principles, in statutes and in the common law. Except that any
statutory provision must be constitutional, however, there is no
limit to the repeal or amendment of a statute or to the extent to
which statute can override the common law.
In the Commonwealth Constitution, the principal
individual right is against deprivation of property by the
Commonwealth without compensation on just terms.74
There is no constitutional right to liberty or security of the
It has indeed been determined in the Federal Court (by a majority
and with evident reluctance) that, in terms of the federal
constitution, genocide would be legal.76
There is some limit upon powers to restrict interstate travel or to
discriminate on the ground of interstate residence, but it is unclear
how far these extend.77
The itinerant, non-white immigrant workers of 1901 are excluded when
the rule against discrimination on the basis of interstate residence
is confined to protecting a subject of the Queen,78
whereas in todays perspective the reasons for
non-discrimination would extend to all legal residents whether
citizens or not. The prohibition of legislation that would tend to
establish a religion or otherwise restrict the exercise
of a religion,79
largely copied from the Constitution of the USA, has never been
successfully relied upon: it has not benefited conscientious
objectors, it has been held to permit federal funding of religiously
based schools, and it does not apply to the States. There is not
even a constitutional right to vote.80
These absences are not oversights: the framers of the
federal constitution paid close attention to the Constitution of the
USA, which does contain a bill of rights. An evident reason for this
decision was a fear that such rights could be claimed by Indigenous
peoples and by immigrant labour.81
For the same reason, while Australia was one of the earliest
signatories to the Genocide Convention 1948 and even approved its
ratification with a statute,82
it has yet to fulfil its Convention obligation to bring the
Convention provisions into force in domestic law.83
There have been several proposals for a federal bill of rights in
Australia, but to incorporate one by constitutional amendment would
be very difficult and it is unclear whether the federal constitution
gives the federal parliament effective power to enact a statutory
bill of rights.84
No State has a bill of rights: the most recent State inquiry into
the possibility of such a bill recommended against it, on the ground
that it would give too much power to the interpreting judiciary.85
Very little of the great English statutes on civil liberties, such
as Magna Carta 1215 and the Bill of Rights 1689, is now regarded as
law in Australia.86
A judicial suggestion that common-law liberties could be read into
the federal constitution was effectively met with the objection that
one could not pick and choose or update: one would have to include
all of the common-law provisions on civil liberties, as they stood in
1900 (with their gender bias and so on).
2.2.7. Constitutional Principles
More important in reality is the relatively recent move
by the High Court to imply principles into the text
and structure of the federal constitution.87
The Court was impelled to this by the difficulty of developing the
Constitution through amendment. The main principle that has been
implied is a freedom of political communication:
legislation or executive action will be invalid if it impedes
communication, among individuals or between individuals and their
political representatives, on a political matter; the governing
criterion is the adequate functioning of the political system laid
down in the federal and State constitutions.88
It has also been judicially suggested that freedom of political
communication can involve freedom of movement and of assembly.
The High Court has, however, been cautious about
abandoning an originalist approach to constitutional interpretation.
Both the Court as a whole and individual judges have wavered among
originalist, literalist and progressivist approaches.89
The Courts problem is that the intentions of the framers form
perhaps the only clearly legitimate interpretive source, yet those
intentions are frequently unclear and, as time goes by, even where
they are clear they may cease to match contemporary values. That is
plainly the position as to gender and race.
The continuing weakness of civil liberties is however
demonstrated by the continual failure of litigation to redress the
oppression of Indigenous peoples. The High Court has rejected claims
by refusing to consider any form of Indigenous sovereignty90
or to question expressions of benign intent by legislators of decades
and by declining to decide that the legislative race
power can be used only to benefit the affected race.92
Although several hundred cases are being prepared, particularly with
regard to compensation for the forcible or fraudulent removal of
part-Indigenous children from Indigenous parents,93
with the passing of time the victims face severe problems of
A different type of potentially protective implication
is the High Courts introduction, at both the constitutional
and the administrative levels, of the concept of proportionality
or, in the alternative American language that the Court also uses, of
being appropriate and adapted to the purpose.
An example of this concepts potential for
protection is that in 2001 the Australian federal government
introduced, and almost succeeded in getting passed, legislation that
would have permitted duly authorised officials to tow a boat crowded
with refugees out to sea and leave it there, even though it was
The legislation would have been entirely within the constitutional
power to legislate with respect to Immigration and
unless the High Court had determined that to authorise such an action
was disproportionate to the power. That ruling might been given
after people had drowned and would then have left the Prime Minister
and the officials purportedly authorised by him vulnerable to
criminal and civil sanctions.
So far, at least, the concept of proportionality is
applied only to those federal legislative powers that are classified
as purpose or purposive powers and not as subject matter
powers, but that is itself a shaky distinction.97
However, the Court has drawn the concept of proportionality from
German law (Verhältnismässigkeit) without, it seems,
much attention to the need always to be able to state clearly to
what the action is proportionate or disproportionate.98
It is one thing to introduce this concept where the constitution
contains a bill of rights, as the German constitution does99;
but to introduce it where the relatum will be a judicial
invention is a considerable arrogation of judicial power. More
generally, it is a new dimension of obscurity.
There are other respects in which the Australian
Constitution is out of date, particularly on the fiscal plane. My
concern here, however, is the lack of constitutional structure. The
longer that Australia has continued with a Constitution that is both
increasingly out of date and very difficult to amend, the more the
interpretation of that document has passed into an inward spiral of
analogyalthough that spiral may already (in High Court cases
of 1997-98) have exhausted its capacity for innovation. The norms
set out in the Constitution dissolve into the normative patterns
offered in a plethora of interpreting judgements.
3. Reconceiving Law
There is, then, a lack of structure, in common-law
systems generally and for particular additional reasons in Australian
law. There is not, of course, a total lack, either administratively
or in terms of legal order. Moreover, any legal system requires a
degree of disorderliness if it is to cope with the hazards of social
However, in terms of legal order, in common-law systems the degree
of order is too low to permit a scientifically acceptable account of
the order in its own terms. The case of Australian law intensifies
this point: there can be such a low degree of order even in a
country that has a formal constitution. The case of the United
Kingdom might be even stronger.
It seems advisable to consider a concept of law that
might dispense with assuming a high degree of order within each legal
system. This concept will nonetheless have to permit a sufficiently
high degree of order within legal science. For the case of a legal
system that exhibits a low degree of order, this will need to be a
concept that does not lead to an account of the legal order in its
own terms. The path to such an external account will necessarily
address the issue of closure.
3.1. The Meaning of Law (1)
3.1.1. The Western Legal Tradition
The discipline of comparative law is a product of the
western legal tradition. This tradition embraces the legal systems
of western Europe, including English common law, as
well as their imposed or voluntarily made copies elsewhere. It also
contains the more global systems of law known as public international
law and maritime law. Each of these systems, as well as the
tradition as a whole, is accompanied by scholarly commentary, termed
legal doctrine. It is within legal doctrine that the
whole is defined as a tradition.
According to legal doctrine, the systems that are
considered to compose this tradition, and especially
their accumulations of doctrine, are said to derive their basic
intellectual framework from Roman law.101
What is now known as Roman law, however, was written
after the fall of Rome. It consists almost entirely of compilations
made in fifth and sixth century Byzantium: the fifth century Code of
Theodosius and the works commissioned in the sixth century by
Justinian which have been known since at least the sixteenth century
as the Corpus Iuris Civilis. The extracts included in those
compilations were editedand we do not know to what extent,
because almost all of the texts drawn upon have since been lost. In
any case, some of those texts had themselves passed through several
editions. What is now known as Roman law, then, is in
substance Byzantine law of late antiquity. Especially, it is
codified and, at least in commitment, it is Christian.
3.1.2. Basic Types of Law
This tradition divides law into three
basic types. In order to list these types comparably, I shall
standardise expression through the concept norm. The
tradition operates in numerous languagesI will provide
English, Latin, French and German equivalents as typicalbut as
to the labels on basic concepts the translation-equivalences are now
The difficulties here lie much less on the level of the signifier
than on that of the signified.
To list each basic type of law under its usual labels:
- Natural law (ius naturale, droit
naturel, Naturrecht): binding norms discoverable in the
structure of the world, particularly in human nature,
either as simply present in the world or as laid down for it by
- Positive law (ius positivum, droit
positif, positives Recht): binding norms laid down
(posited) by a ruling person or group.
- Customary law (mos or consuetudo,
droit coutumier, Gewohnheitsrecht): binding norms
arising in and sustained by customs (long-established patterns of
social behaviour). The customs may be those of an occupation, an
institution, a locality, a nation or the international community.
In relation to each of the above labels, the definitions
given are of typical usages: there are other usages and some of
those are common.103
The important issue here is that the histories of the signifiers and
the signifieds are different.
3.1.3. Legal Positivism
A westerner who speaks today of law
without qualification will be taken to refer to positive law. The
signifier positive, however, is not very informative.
It derives from Latin positivus,104
an adjective derived from the verb ponere (to put, set, lay or
lay down). The adjective, however is not a classical expression, but
is first found in late antiquity (second to sixth centuries). In
that period positivus had two meanings: (1) not belonging to
nature but artificial; and (2) a grammatical root. During the
Middle Ages it acquired two more meanings: (3) existing or
affirmative, the opposite of negative (negativus);
and (4) materially real, as opposed to the merely thought or
imputed. Its later careerin philosophy, legal theory,
theology and the physical and social sciencesdevelops all of
these meanings. The notion of positivity is first found in moral
terminology around 400, in the expression positive justice
but the expression positive law (ius positivum)
is not found until the twelfth century. The first known use of that
expression is by Abelard,106
although he appears to treat it as familiar.107
Later in the century it is found in more mainstream scholars,
including a cardinal, and by about 1260 it became, as Kuttner puts
it, quasi-officially accepted.108
Later still, the character of human positive law as a product of
will would be extended into the divine sphere. Grotius distinguishes
from natural law a category of positive law,
characterised by its being law which is immediately derived
from the will of the legislator. This category is then
subdivided into divine and human,
according to whether the will in question is that of God
or of a human ruler.109
Both the concept and the name positive law
thus originate and spend most of their career within the framework of
Christianity. The modern expression legal positivism
consists of accepting both concept and namealthough, beyond
this, the label has been used to mean such a variety of things that
it has been suggested we would be better off without it.110
Such dismissal, however, throws out the ambiguity as a potential
resource: rather, acute and persistent ambiguity can be read as a
symptom. The dismissal may also be too quick, for broadly one can
say that legal positivism is two things: (1) the view
that there is no natural law, i.e. that all law is positive law
(leaving customary law in the too hard basket); (2)
the conduct of legal science according to the tenets of positivism
as that word is understood in philosophy and social science.111
The issue I wish to pose is whether these two views are actually
Outside legal science, to be a positivist
is, in the first place, to take as paradigmatic for any discipline
the assumptions and methods of the physical sciences, queened by
For the present purpose, I will call this outlook philosophical
It belongs to the positivist movement in philosophy
and the social sciences that flourished during the nineteenth and
However, whatever its success for physical science, philosophical
positivism cannot be transferred wholesale into the social sciences:
for one thing, the physical sciences deal with physical fact to the
exclusion of meaning; for another, there are ethical limits to
experimenting on human beings. Given these qualitative differences,
the attempt to reproduce in social science as much as possible of the
methods and assumptions of physical science places a premium upon
those assumptions. When ones focus is on social science
alone, the label positivism comes to refer just to
those assumptions, as philosophical presuppositions for the
possibility of social science.
Those assumptions are threefold:
(1) that reality is basically material, apprehended
through sensuous experience; accordingly,
(2) that statements of what is and of what ought to be
are different in kind; and, accordingly,
(3) that no statement of the one kind can follow from a
statement of the other kind.
In this sequence, the first assumption entails the
second and the second entails the third.
When legal theory proceeds upon the three assumptions of
- Natural Law. The concept of natural law is a
quick victim on all three counts. It is found (1 above) to assume a
non-sensuous (i.e. metaphysical) reality, in relation to which (2
above) statements of what is and of what ought to be are not
entirely different, so that (3 above) a statement of what ought to
be can be derived from a statement of what is.
- Positive Law.
- Concepts of positive law that assume a suprahuman,
personified state go the same way.
- Yet the concept of positive law is allowed to survive.
It is held (1 above) to satisfy the first assumption, in that the
very positivity of positive lawthe human act
of positingbelongs to sensuous experience,
i.e. is positive also in the philosophical sense. It
then seems to be supposed (2-3 above) that the second and third
assumptions are satisfied by a science of law in which description
(is) and evaluation (ought) of positive
law are at least logically segregated.
- Customary Law. The concept of customary law
might satisfy (1 above) the assumption as to sensuous experience,
yet it is condemned for purporting to (2-3 above) derive a statement
of what ought to be from a statement of what isthat is, to
derive a norm from a fact of observed behaviour.
3.1.4. Kelsens Problem
This survival of the concept of positive law is,
however, unsustainable. It appears to have met its come-uppance in
the fate of arguably the most sophisticated form of legal positivism,
Kelsens pure theory of law.115
For Kelsen, positive law consists of norms and a norm
is the meaning of an act of will. The difference
between a non-legal meaning of an act of will and a legal norm is
that the former is a subjective meaning, dependent on
the individuals recognition of it as binding, while the latter
is an objective meaning, binding independently of the
individuals recognition or even knowledge. What is the
condition for this objectivity? Some have argued, for
instance, that a norm that is the meaning of an act of will of a
personified state enjoys the objectivity of its
suprahuman author. But Kelsen rejects such mundane metaphysics.
Nonetheless, he does not deny the legal norms appearance of
objectivity. Instead, he tries to construct within legal science a
perspective in which that appearance can be accepted consistently
with the tenets of philosophical positivism.
For half a century he maintained that one could simply
presuppose, as a matter of transcendental logic, that it is so.
Eventually, however, he accepted that this presupposition could at
best be a fiction in a tenuous sense. More plausible
to my mind is a diagnosis that this dilution (at best) of Kelsens
theory marks an overall failure of legal positivism: a point at
which the concept of positive law fails the tests of philosophical
positivism. That point is the second blow of the
anti-metaphysical hammer, in which the concept of positive law is
deprived of any metaphysical foundation. Once its appearance of
objectivity cannot be sustained, it hardly matters whether one also
takes the is/ought cleaver to it. That was only to be expected of a
concept that survived from scholasticism. Nor is the concept saved,
because it is not altered, by its amplification through the addition
of historical or social contextualisation.116
In short: the concept of positive law is ultimately incompatible
with the tenets of philosophical positivism, in the same ways as the
concept of natural law.
3.1.5. Customary Law
The concept of customary law has never made sense from a
philosophical-positivist standpoint and whatever sense it may
have made in earlier times might now be undiscoverable.117
A clue to the difficulty, however, may lie in the
history of the concept. The expression customary law (droit
coutumier, Gewohnheitsrecht) is relatively recent:
it does not seem to have been in general juristic use before the
nineteenth century. It appears to name an independent type of law.
Historically, however, it is a renaming of the custom
element in the much older couple law and custom.118
Three characteristics of that element stand out.
First: the context tends to be imperial. A contrast
between statute and custom (although not the very expression law
and custom) first became salient on the level of theoryor,
at least, of classificationin the Institutes of
In the history of the common law, it appears in England with the
securing of Norman rule.120
Second: the custom element derives no
content from within the imperial legal order. It is a null category,
to which any content can be given that may be found in the
metropolis, in the provinces orespeciallyin territories
that are to be conquered. The Other norms will be characterised as
custom because their bearers are subordinate,
irrespective of how they would themselves characterise their norms.
Third: the universal components of the concept
customas an element of this coupletend to
be contraries or negations of the salient characteristics attributed
to law. Already with Justinian, there is a subtle and
far from innocent mixing of contrariety and negation.121
In the Digest, custom (mores or consuetudo)
appears as a popular creation, the contrary of creation bymainly
imperialauthority. Thus far, the former could be a rival to
In the same breath, however, the creation of a custom is
characterised as tacit. The creation of a law,
evidently, is explicit. Formally, this is another contrariety and
the tacit could be as valuable as the explicit. Butshort of a
deep irrationalism, which not a Justinianian optionthat is
obviously not so. This move in favour of authority is underpinned by
negation: a law (lex) is written law (ius
scriptum) while custom is unwritten law (ius non
scriptum). Given the logical priority of the positive
over its negation, this provides laws with a logical priority over
customs. And that move is made in the Institutes, a textbook
through which the student of law would enter the juristic world. The
negation thus conditions the young enthusiasts for law,123
training to become imperial officials, to assume the priority of
norms created by authority, before they set eyes on the risky
contrarieties. Later writers, including both jurists and
anthropologists, would add still more emphatic negations into the
custom element: that it is involuntary, indeed
unconscious and the following of custom even a form of automatism.124
The nature of the custom element may
therefore be discoverable through a double reflection. On one side,
by reference to imperial encounters and the rôle played in them
by the couple law and custom. And, on the other, by
reference to that of which it is the contrary or negation, the law
element. Closure in the custom element is then
presumed to derive from closure in the law element,
while the imperial context may provide reasons for the extension of
legal closure into the idea of custom.
There are other uses, even of the couple law and
custom, that do not fit this model: customary international
law, the image of the common law as custom, commercial and
professional customs, curial customs.125
However, this is the model that appears to dominate when custom
is located as a type of law (ius, droit, Recht).
The inclusion of custom within a legal order may
contribute to the element of disorder that any legal system requires.
The claim that common law as such is customary amounts, however, to
admitting a low degree of order in the system as a whole.
3.2. The Meaning of Law (2)
Back to square one, but let us change the board.
Instead of proceeding from the idealist heritage, or in fondly
believing that with legal positivism one has escaped
from it, one can take philosophical positivism seriously and attempt
to understand law as a material reality. One can ask: what type of
social behaviour is socially called law? The existing
body of legal theory will stand as the most sophisticated expression
of that nomenclature.126
3.2.1. Encountering Law
A matter of structure is first of all a
matter of physical reality. To say this is to commit a banality, but
it is of the first importance here. Also banal but important here:
a physical structure is a process, composed of events. It is a
patterned process: on the physical plane, a regularly occurring
process is a system.
The physical reality of meanings is their (literal)
embodiment in human social behaviour. Behaviour, as Weber says, is
social when it is behaviour to which the actors collectively attach
Some of those meanings are descriptive, others prescriptive. With
Kelsen, let us next distinguish the prescriptive meanings into those
that appear as subjective and those that appear as objective. This
brings us already to his central and frustrating issue: under what
conditions does a prescriptive meaning appear as objective?
Kelsens starting point is the God-State: the
prescriptive meaning that is a legal norm is binding because it is
objective and it is objective because it is endowed with the
objectivity of its creator. Once Kelsen rejected the idea of the
God-State as metaphysical, his first option was to suppose that the
illusory objectivity of the God-State was communicated to the
legal norm. This would entail that the apparent bindingness of the
legal norm was also illusory. Kelsen cursorily rejects this option
and prefers to struggle, in the end unsuccessfully, to give an
account of legal bindingness in which it will appear as a truth.
His mistake, I want to suggest, is that he failed to
grasp meaning as something that is physically embodied, hence as
something that is encountered. He neglects the phenomenon,
the event, of encounterthe meaning embodied as actual
speech-act (oral or written). It is an easy error, into which one
can be seduced by the intellectual accessibility of the printed
The text, however, is also something physically encounteredas
much as the person whose garb proclaims them to be a judge.129
Or, to take a common but radical experience: at the line in front
of an immigration officers desk, one physically encounters the
national legal order. Thus one encounters the persons, places and
things of law. That, indeed, is evident. Yet they are constituted
as persons, places and things of law by legal meanings and a
strange characteristic of legal meanings themselves is that they
appear not to be encountered. Instead, they appear as
always-already present and oneself as always-already in their
presence. They appear not as specifically embodied but, rather, as
environing. They efface the moment of the encounter with them.130
And they appear to do this all by themselves, without external
support. I will sketch a picture of the legal norm which will
provide an account of this apparent erasure. This picture will be
proposed as an empirical hypothesis: in the order of sociology or
The key factor, I think, is that this apparent erasure
appears not only in the content of a legal norm, through which
it constitutes a person, place or thing as legal, but
also in its form, through which it purports to obligate. A
norm that is socially named legal has the
distinguishing characteristic that it is assumed to obligate
unconditionally and to do so simply because it is law.
The obligation imposed by a legal norm is conditioned, if at all,
only by another legal norm: at some point, there can be a final
decision and the prospect of that decision is present from the
beginning. To encounter one legal norm is to encounter it as an
aspect of the whole legal order: the finality present in the whole
is also, in that sense, present in the part. Nor does this finality
come from outside the legal order: it does not derive from the
particular norm or the whole order being (for example) just or
rational or even effective. As to justice, indeed, the sole
intrinsic relation between law and justice is that every independent
legal order claims to provide the ultimate criteria of justice. Nor
does this legal character have a necessary linguistic
form: it is sufficient that the meaning could be expressed as an
(objective) ought; it might even, in fact, be
expressed as an is.131
The starkest manifestation of this immediate finality is
the police officers command: the officer simply does not take
no for an answer. Any possibility of the legitimacy of
a contrary norm is always-already excluded. Yet nothing outside the
legal norm seems to perform this exclusion.132
What is going on?
3.2.2. Six Tools for a Double Shift
What I am going to do, generally, is to execute a double
shift in the focus of defining legal character: (1)
from the signified to the signifier; and (2), as to the signifier,
from the task of nominal definition to that of socio-linguistic
To effect these shifts, I will need some special tools:
- Contrariety or Opposition. The first is
to hand: it is called contrariety (contrariété)
or opposition (opposition).133
The figure operating when, for example, the officer does not take
no for an answer does not seem to be that of negation.
For negation, as ordinarily understood, preserves the positive in
negative form: not-P is always not-P. But the
democrat who opposes a monarchy does not prefer just a non-monarchy.
The preference is, rather, for an opposite sort of régime.
Democracy is not the negation but the contrary or opposite of
monarchy, as for example sunset is not the negation but the contrary
or opposite of sunrise and retreat is not the negation but the
contrary or opposite of advance.134
Likewise, if there is a norm All vehicles must be driven on
the left-hand side of a road and I drive on the right-hand
side, I will not simply be driving not on the left-hand
side, because I could do that by driving in the middle.
Rather, since right is not the negation of left
but its contrary or opposite, I will be doing the contrary or
opposite of what the norm prescribes. Or, if there is another norm
All vehicles must be driven on the right-hand side of a
road, the conflict between these two norms will not be one of
contradiction but one of contrariety or opposition.135
This figure is by no means mysterious: it is the theme of a
childs game of opposites; my point is that the
figure of negation is inadequate here.
- Absentation. The second, I shall call
absentation (absentation). When the officer
does not take no for an answer, the possibility of a
legitimate refusal is not rejected: it is simply not entertained at
all. It is not preserved in any qualified form, but is rendered
absent. As well as presence, there is absence; as
well as presentation, absentation. Within the legal
discourse, the alternative as an object of knowledge is simply not
And the encountering subject who might wish to present an
alternative is, in that respect, silenced.137
- Closure. Unconditional absentation, I shall
call closure (clôture). I shall
distinguish two forms of closure: weak closure (clôture
faible) and strong closure (clôture
forte). By weak closure I will understand
simple exclusion: the Other as subject is simply absented; heard,
of course, but not acknowledged, not listened to at all. By strong
closure I will understand a more subtle figure. The Other as
subject is absented as such and, in the same moment, re-presented
in terms of the closing discourse. The bearer of the Other meaning
may then be shunned, condemned or subjected to therapyeven
(totally conditionally) loved.138
- Tacit knowledge. Knowledge can be explicit or
tacit (connaissance/savoir tacite). The same
knowledge can be sometimes tacit and sometimes made explicit: for
example, I can discuss the rules of grammar explicitly, but if I
tried to make them explicit all the time that I apply them I would
be tongue-tied. Tacit knowledge is the ordinary form of an
The knowledge involved in a closure, however, must remain
tacit or what is absented would be made present in being made
explicit. That is, in the case of a strong closure, what is
re-presented as other than itself would then be revealed as itself.
How, however, could knowledge that must remain tacit be
communicated? Searle proposes that any tacit knowledge can be
communicated through imitation of its application: there can be an
osmosis in which the repetition conveys its own necessary
- Irrelation. In an encounter with closure, the
relation between the encounterer and the encountered is far from
equal. Some meaning that the closer attributes (let us presume
correctly) to the Other is either entirely absent from the closers
explicit knowledge or re-presented there in a form that the Other
might not accept. I shall call this lopsided sort of relation an
Dark Performative. I will identify the
mechanism of closure on the plane of the signifier, as a
particular type of locution that I will call a dark
performative (performatif sombre). My model is
Austins theory of performatives, as developed
by Searle. Austin finds that certain locutions do not simply denote
or connote, but actually constitute: for example, to say I
bet you sixpence it will rain tomorrow is to make a bet.141
Searle develops this concept.142
He calls a meaning that has this sort of objectivity an
institutional fact, distinct from a physical or
brute fact. For Searle, all linguistic usage is
rule-governed. The rules may be regulative
or constitutive: regulative rules regulate
antecedently or independently existing forms of behavior
while constitutive rules do not merely regulate, they create
or define new forms of behavior. The rules of a game, for
example, do not merely regulate a game when it is played but create
the very possibility of playing the game.143
A system of constitutive rules is an institution. An
activity so constituted is not mere behaviour, a merely material or
brute fact, nor it is something merely subjective: it
has an objective existence, as an institutional fact.144
Now, this sort of performative constituted by simply presenting.
What I want to suggest is that there is another sort of
performative, which constitutes by re-presenting, in the
manner of a strong closure.145
I am seeking a position beyond that reached in the
literature on ideology and alienation, which tends to identify them as
sets of effects, which are traced to causes without explaining the
process by which those causes produce those effects. Greater
attention to process is found in the literature on exclusion and
silencing, but without identifying the mechanism by which these
processes are carried out.
3.2.3. Law as Dark Performative
I have some other tools that could tie up some loose
ends that may emerge,146
but the above will do the present job of introducing the idea of the
word law as darkly performative.
Perhaps the most powerful of dark performatives is a
locution that includes the word God. I put a moral
view to you. You oppose it. I then say but God,
attributing that view to God as its author. With that
attribution, all possibility of your opposition being legitimate is
excluded. More, since you are opposing the morality laid down by
God, you are (re-presented as being) in a state
of sin. This happens without my explaining the meaning of
God. That might be done as supplement: more likely,
however, I will declare that beyond a few pointers the nature of
God cannot be explained. The locution by itself
already effects the closure. It is the same with locutions involving
the word faith. I would say Well, I disagree
but for me this is a matter of faith. Introducing the word
faith makes the difference between what Kelsen would
call a subjective and an objective
meaning. The view is now objective as an article
of faith. I do not have to explain what I mean by
faithindeed, I am unlikely to be able to do so
and may well declare that it is inexplicable. The word evolution
seems often to have been used similarly. Probably, no word always
operates as an element of a dark performative or of any other kind of
performative. But it does seem that some words, such as God
or faith, usually do so.147
One can discuss these locutions, without falling under
their spell, by not using but mentioning them.148
That discussion may lead to the construction of an alternative,
non-performative or at least not darkly performative use.
I want to suggest - and the earlier comments on
legal positivism ease the paththat the word law
operates in this way. A prescriptive statement that is, in Kelsens
terms, a subjective meaning is converted into an objective meaning
through characterising it as law by way of dark
performance. Not every use of the word law will have
this effect: I might use the word in the sense of the physical
sciences. Nor, if there is this effect, will it always create
obligation: I might, as historian or comparatist, refer to a norm as
a norm of Roman law or of French law;
but in these cases I will be engaging in an oblique sort of dark
performance, since I will be saying that the norm has been obligatory
(in Justinians Byzantium) or is now obligatory for others (in
Paris today). On the other hand, the same locution can be carried
out with equivalent language: such as characterising a norm as
legal, its site as a statute or its
author as a judge. Further, as Austin emphasised,
performance is not a matter of single words or phrases, or even of
language alone: it is a speech act, a social event with a context.
That said, there seems no obvious barrier to the occurrence of
performatives, light (clair) or dark, in artificial languages or through
non-verbal symbols. I shall also leave aside here the possibility
that physical symbols might perform directly and not only as
symbolising a prior performative utterance.
Once legal character is located in dark performance, one
loosens the assumptive connection between specific language and the
signified. There is room for the normative patterns
that I identified in common-law thought.
With a dark performance, the excluded and the actual
process of exclusion must remain tacit. Here may lie an explanation
of the paradox that puzzled Hart, that most people seem to know what
they mean by law yet nobody seems able to say.149
This explanation also has the advantage that the process it
identifies is simple, albeit obscure. For the meaning of law
would have to be simple, comprehensible to the whole population, or
no legal system could function.
The unconditionality of the legal norm would be
subverted if the norm were accompanied by description that was open
to registering the standpoint of someone who would prefer to follow a
contrary norm. Instead, description has to be internal to the norm:
the world has to be descriptively re-presented solely as contents of
legal norms. This re-presentation would be a legal ideology. The
first casualty of such a closure is the scientific principle of
These moves do not belong simply to the order of logic,
since they do not entirely follow rules of thought that can be made
explicit. Nor, however, do they belong to the order of rhetoric,
since there is no attempt to persuade. Perhaps they belong to a
third order or perhaps one needs to understand both logic and
rhetoric as currently conditioned by closure.
In this account of the nature of law,
legal norms or normative patterns have a double reality as materially
embodied meanings: (1) as norms or normative patterns and (2) as
illusive beliefs. The task of critique is not only to reveal and
dismiss illusive beliefs but in addition to explain their origin and
This understanding of a norm or normative pattern
applies to the concept of natural law as it does to that of positive
law. Both natural law and positive law exist as human norms or
normative patterns that are called legal and with this
sort of ideological accompaniment. Potentially it also applies to
the concept of customary law, but there is the prior difficulty of
understanding any type of ought as customary. However,
it seems likely that many bodies of customary law would
turn out, on closer examination, to be grounded in religious beliefs
that colonial régimes have been unwilling or unable to
It could be argued that this includes too much.
However, the criterion of effectiveness can be added in, not as a
criterion for the existence of law but as a test of what it is
relatively important to study. Then one would leave out of account
the man with the sandwich board commanding that one Abstain
But one would still study natural legal orders, because the question
of coercion is not about the intrinsic nature of a statement or
action or about its potential effect upon oneself but about whether
it is capable of having a coercive effect upon anybody. For the
appropriate believer, there can be a real choice between facing
either bullets or brimstone.
Finally, to show that legal character lies in the form
of a norm is not to show that it does not also lie in the links
between norms. Kelsens image of dynamic legal order, of a
positive legal order as primarily a chain of authorisation, suggests
strongly that it does.152
The answer, I think, is that authorisation does not necessarily
involve closure. A sports club committee authorises its secretary to
record membership, its treasurer to manage the funds and the coach to
do just about whatever it takes to win the cup; none of that
involves closure. If there is closure in links of authorisation
between legal norms, it derives from the legal character of the norms
themselves. The position is even clearer in the case of what Kelsen
calls static legal order, in which the links between norms are
deductive. Unless any deductive link at all is to be classified as
closed (and I shall pass on that issue), closure in links of
deduction between legal norms derives from the legal character of the
I shall conclude on two planes: (1) to specify the
hypothesis about law further with reference to Australia; and (2) to
reprise the initial issues in the light of the general hypothesis.
4.1. Australians all153
have located the key to legal character on the plane of the signifier
and especially in the word law, which is to locate it
within the form of a legal norm.154
I have suggested that this is the mechanism by which legal
closure is produced. The closure involved in a particular legal
norm would not, however, be confined to the form of the norm but
would be tailored to its content.
I will not examine individual norms here, but some
categories of exclusion have already emerged. These are the closure
of the Australian Constitution to the voices of women,
Indigenous peoples and immigrant workers. Those voices are simply
absent. Women do not appear in the constitution at all. Indigenous
people and immigrant workers are not only voiceless, absent as
subjects, but present as objects of legitimated repression. They are
singled out for special control through the power to legislate with
respect to any race. Non-naturalised immigrants are
excluded from protection given to a subject of the Queen.
And a commitment to economic expropriation is manifest in the
constitutions protection of property but not of the person.
Moreover, consistently with the general absence of alterity in legal
scholarship, the voices of women and minorities are not heard nearly
as loudly in scholarship on the constitution as are the voices of
If in the transition to independence the Australian
legal order may have become multivocal by accident, registering
British and specifically Australian voices, this multivocity has yet
to extend to women and minorities. Given the difficulty of
constitutional amendment, it is also very unlikely to do so unless
the present federal constitution is replaced. How could it be
replaced? One could take a tip from a certain manufacturer: just do
4.2. Approaches in Comparative Law (reprise)
In these terms I return to the initial issues. The four
issues listed by Pfersmann, and his explanation of them in terms of
an illusion of the legislator-jurist, were addressed in
my first section; I add now that, in the approach I am proposing,
these issues cannot arise.
In the succeeding sections I addressed his issue of
closure, agreeing with him that law is marked by
closure. However, I found the closure not in relations between norms
but in norms themselvesnot in their content but in their form
as legal norms and not in the signified but in the signifier.
Those theoretical shifts, I suggested, had the
particular benefit of facilitating an account of a common-law system.
More broadly, they provided a different way of understanding the
identity of law as understood throughout the western
legal tradition. For the global typology required in comparative
law, this poses the question: are other traditions
institutions that the comparatist considers to be legal
closed in the same way, closed in other ways or not closed at all?
(In what ways does each legal family seek its
happiness?) This also becomes a question for general theory of law,
both so far as comparison is involved in generalisation and so far as
the question can also be asked about other normative institutions
within western culture.
4.2.1. Epistemology and Ontology
There remain from Pfersmanns analysis a claim and
a preference. I accept his claim that comparative law has continued
to adhere to a weak epistemology or ontology and have identified that
epistemology or ontology as an idealism that pervades legal science.
I also agree with his preference for a constitutive
alternative, although he is coy about how one would be
constitutive. Perhaps, consistently with the claim, he
is hinting that comparative law has yet to catch up with the
Copernican revolution of Kantthat our knowledge does not
conform to things but things to our knowledge.157
If so, I think that the point could be made about legal science in
general. In a more history of ideas idiom, it might be
said that legal science has passed through the Renaissance on the
side of ought but not on that of isthat
it has humanised its values but not yet its construction of reality.
This perspective does not, however, require an immediate
discussion of epistemological and ontological questions or,
consequently, entail a scientific paralysis until those questions can
be resolved. In scientific practice, propositions of epistemology
and ontology are not preconditions but supplements. They are brought
in after useful tools have been basically designed, to refine the
design of each tool and of the set, and to address discrepancies of
fit between those tools and tools of an earlier design. All the
same, I acknowledge that the philosophical resonances of my little
toolset are suspiciously eclectic; I have even drawn heavily upon
one philosophical work whose resonances are themselves suspiciously
I need to develop my own philosophical approach.159
4.2.2. Is and Ought
Questions of epistemology and ontology are, at least to
begin with, questions about what is. On every level of a science,
however, there are also practical issues. I shall bracket here the
question of the relation between is and ought,
except to say that at least a logical segregation of them seems to
follow from treating meanings that are ones subject matter as,
in the first place, somebody elses. If they are somebody
elses, it does not follow that they ought to become ones
own. That seems to be the case, whether the meanings themselves are
descriptive or prescriptive.
That said, there are the questions of the practical
value of legal science and, within it, of particular legal
disciplines such as comparative law. To these questions one could
give the limited answer that legal science describes law, that
accurate describing is a benefit to humanity and that whatever
humanity might do with a particular descriptionbe that picture
flattering, unflattering or nothing special to look atis an
extra-scientific issue. Then the expression comparative law
would have the same sort of meaning as comparative religion.
One compares religions for the purpose of understanding them better,
but not with the aim of adopting any of them, not necessarily with
the aim of benefiting any of them and certainly not with a prospect
of adopting all of them at once.
A philosophical positivist as radical as Kelsen would
say that a science has to stop there because reason is only
theoretical and not practical. But I do not share that view. For
one thing, when one observes the operation of legal systems that view
becomes counter-intuitive. For another, arguments that ought
statements cannot be rational may be equally applicable to
descriptive statements, if those are understood (in a constructivist
way) to have the meaning ought to be considered the case.
Then no statement would be rationalincluding this one. So I
shall prefer to say that legal science can be both descriptive
and prescriptive. I shall also accept that it ought to be
both. That is to say: legal science ought to be practical with
regard to law.
But that is not to decide whether legal science should
operate for or against law. This will be a subsequent
decision: especially, it will no longer be obvious that law reform
is the practical purpose of legal science, including the application
of comparative methods160
in law reform. And that decision will be made with regard to the
4.2.3. Closure and Legal Science
I have offered a description of law in the western legal
tradition: that it is marked by normative closure. I would go so
far as to say that normative closure is its distinguishing mark. I
have also implied and would suppose that, at least generally, closure
is an undesirable thing. Would it be consistent with these views, to
engage in law reform?
I shall assume that the question of law reform concerns
legislation. It may be that particular reforms, or in a common-law
system most reforms,161
can be achieved more readily by influencing judges than through the
path of legislation. However, there are strong indications to the
contrary: a separation of powers ordinarily excludes the judge from
most major legal reform; adjudication, with its very limited
research component and its focus on the individual situation, is
intrinsically unsuited to major legal reform; and the judges
rôle lies wholly within the framework of the law, with its
closure, while the politicians rôle does not.
It is tempting here, with regard to law in general, to
develop an analogy between closure and coercion. The analogy would
not be strained, since the two would often be found togetherin
law as elsewhere. Then one might say that, since it is generally
agreed that coercion can be a necessary evil, so also with closure.
Yet coercion and closure are substantially different. Coercion is an
option, while closure is a fate. A fist can be clenched and
unclenched, a gun picked up and put down; but closure is not
something frankly chosen and not something that one can simply choose
to discard. It hides itself, as an invisible cage. I have argued
previously that closure is the mechanism of ideology and that
ideology and law are the same thing seen from two different points of
Ideology is a form of consciousness produced by social conflicts.
Only secondarily is it a product of conspiracy, when people who
perceive that there is a distortion promote that distortion for their
own advantage. But that perception usually will not amount to
actually seeing through the ideology.
It seems better to observe that, if normative closure is
the distinguishing mark of law, nonetheless it is not laws
sole characteristic. Coercion is usually another. And there are
others. Hence the negative value of the closure might be outweighed
by a positive value of one or more other characteristics. That would
be an evaluation to be made of a particular legal order at a
particular moment, and usually of particular provisions or proposals,
rather than as an assessment of law in general.
Legal closure, moreover, is not the only closure around.
In addition, closure in law is abstract: a legal norm can have any
content, including a reference to another closure. Accordingly, law
can support or oppose another closure: that is, by protecting or
penalising actions produced through the other closure. It can, for
example, protect or penalise actions produced through closure towards
people on the ground of their perceived membership of a race.
In being abstract, however, legal closure has no reason to exist
unless there is some other closure that it supports. Ones
choice whether to assist law thus includes a choice whether to
tolerate a closure that law supports, as the price of having law that
opposes some other closure.
Legal closure, being abstract, is constant. But other
closures may vary in their intensity. Thus it is possible to assist
the introduction of a particular law, with its legal closure and
together with a closure supported by that law or by the legal order
as a whole, if worse closure is thereby prevented. For example:
someone who considers that a particular legal order supports a
closure involved in economic exploitation could readily advocate a
combination of laws that provide for contracts of wage-labour and
laws that prohibit slavery. Nor is closure obviously the worst thing
that one can encounter. Thus I earlier noted with regret that
Australia has failed to introduce domestic law against genocide.
If there is legal closure and the prospect of overcoming
it reduces to the prospect of changing the social relations that give
rise to and sustain it, the opponent of legal closure must address
those particular relations. Moreover, social relations in general
are already suffused with legal relations. The opponent of legal
closure therefore needs in any case to contribute to processes of
legal change. The legal comparatist would play a vital rôle in
assisting such changes. One would advise how, in various legal
systems, particular measures have reduced or sustained closures and
what compromises have been made.
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firstname.lastname@example.org. An earlier version of this article
(Stewart 2002) appeared under the title Structure of the
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2 Pfersmann 2001:
before and after note 3.
2001: part I introduction, part IB.
5 Pfersmann 2001: parts IA and IIA; Izorche 2001; Samuel 2001; cp Markesinis 1997: 25.
has always been an especially strong element in public international
lawbut that is, equally, a special case. It is not confined
to romanist legal orders: even in England the rule has now gone,
that learned authors cannot be cited until they are safely dead (and
unable to protest that they have been judicially misunderstood).
one legal order incorporates a norm of another legal order by
reference, as the Australian legal order often does with norms of
English law, that is reference and not comparison.
have endeavoured to explain how his system as a whole, through what
would later be denounced as the naturalistic fallacy,
contains a philosophical-positivist doctrine of natural law:
2001: part IA.
2001: part IA.
2001: part IA.
Dostoyevsky 1880/1958: 691-6, 764.
and Wickham, developing a Foucauldian theory of law, propose a
definition of law that would include among operations of law
the procedures of a company concerned with proper
bookkeeping (Hunt and Wickham 199: 102). While Davies goes for
broke: Law is a limit and any limit is a law
(Davies 1996: 15).
theory of law, Dworkin holds, constitutes the
elaborate scheme of justification required to justify the body of
laws (Dworkin 1977/1978: 66-8). Hart misses the point when
he thinks that Dworkin pursues justification rather than
description (Hart 1961/1994: 241ff). Dworkins aim (Dworkin 1986)
is to make description serve justification by showing law in (as he
states repeatedly) its best light.
2001: part IIA.
point is distinct from that of the relation to general theory. Thus
one Europhile comparatist envisages a ius commune
Europaeum (Markesinis 1997: 13). Within a federation,
comparison between the laws of the States is readily accomplished
within the federal legal order as a whole.
2001: penultimate par.
2001: final par.
in the relation between the legal order of an EU member state and
that of the EU as such.
static and dynamic ordering: Kelsen
1949. I shall leave aside the old myth that in a common-law system
judges do not make law: not even the judiciary will now say that;
on the contrary, they enjoy the recognition of their lawmaking
capacity. Australian courts have at least avoided one mistake of US
federalism: they have not permitted the development of a separate
common law federally and in each State; in Australia
there is but one common law, and it is now Australian common law and
not part of the common law of England
26 cp Berman 1977; Arnaud 1975: 45-74.
decision of the Federal Court, which will set out the facts
exhaustively, is likely to be longer. One recent Federal Court
decision, by a single judge, runs to nearly 500 pages: Cubillo v
Commonwealth (2000) 174 ALR 97.
v Commonwealth (1998) 195 CLR 337.
29 Zweigert and Kötz 1969-71/1998: 69.
law student is required to read case after case until the
instruments of analogy are acquired through a kind of osmosis.
Llewellyn advised, To do the work is not: to do the classes.
Rather must you immerse yourself for all your hours in the law.
Eat law, talk law, think law, drink law, babble of law and judgments
in your sleep. Pickle yourself in lawit is your only hope.
(Llewellyn 1930/1951: 96). Even this is relatively recent: English law
was not taught in universities until the eighteenth century or,
widely in universities, until well into the twentieth. Even then,
some law schools in provincial universities had previously been
training schools for intending solicitors and many legal academics
were moonlighting practitioners. Australia imitated this model and,
unlike England, has yet to establish a legal academic tradition that
is firmly distinguished from the legal profession.
33 An example, jointly produced by the High Court of Australia and the House of Lords, is a radical muddle over one of the central concepts of torts (civil delict), 'proximity'. This concept seems barely to have progressed since it was satirised by Pascal (Pascal 1657/1967: Letter I).
an interpretation of the Constitution of New South Wales was urged
with reliance on English cases from the seventeenth century;
however, the High Court was not altogether patient with that
strategy: Durham Holdings v NSW (2000-01) 177 ALR 436.
just should not happen, that in interpreting a constitutional
provision that has stood unamended for a century a split decision of
a supreme court should strike down a long-standing fiscal practice
and, in the particular case, as much as A$5bn worth of current
taxation: Ha v NSW (1997) 189 CLR 465. The sole
beneficiaries of this decision, apart from the plaintiffs, appear to
have been tobacco companies, who are estimated to have profited
considerably from selling stockpiled tobacco products tax-free in
the brief gap between the invalidation of State taxes and their
replacement by new Commonwealth taxes.
any man has the means of knowing a twentieth part of the laws he is
bound by. Both sorts of law are kept most happily and carefully
from the knowledge of the people: statute law by its shape and
bulk; common law by its very essence. It is the judges …
that make the common law. Do you know how they make it? Just as a
man makes laws for his dog. When your dog does anything you want to
break him of, you wait till he does it, and then beat him for it.
This is the way you make laws for your dog: and this is the way the
judges make law for you and me. They wont tell a man
beforehand what it is he should not dothey wont
so much as allow of his being told: they lie by till he has done
something which they say he should not have done, and then
they hang him for it. What way, then, has any man of coming at this
dog-law? Only by watching their proceedings: by observing in what
cases they have hanged a man, in what cases they have
sent him to jail, in what cases they have seized his goods,
and so forth. These proceedings they wont publish
themselves, and if anybody else publishes them, it is what they call
a contempt of court, and a man may be sent to jail for it.
(Bentham 1792/1843: 235).
This position has been much
improved by the production of law reports and by placing law on the
Internet: Australia is excellently served, in this respect, by the
website of the Australasian Legal Information Institute:
http://www.austlii.edu.au; the Commonwealth Government legal
website (http://scaleplus.law.gov.au) has in some respects more
information, but is difficult to use and is being wound back.
However, physical access is one thing, intellectual access another.
Australia, legal aid for civil cases has nearly disappeared. For
criminal cases it is still widely available, yet has become so
restricted in amount that a tactic now used by defence counsel is to
prolong the proceedings until the defendants legal aid has
run out and, as justice must be seen to be done, the case cannot
outstanding example of this is Re McBain (2002) 188 ALR 1.
The High Court unanimously found that the Commonwealth
Attorney-General had been wrong to issue a fiat that granted
standing to the Australian Catholic bishops to appeal against the
outcome of a case on in-vitro fertilisation in which the bishops had
not been a party. He had done so even though both of the actual
parties had been satisfied with the decision and had not wished to
appeal. The bishops had required his fiat because the time for
appeal had long expired.
39 Liebermann 1903-16/1960; Whitelock 1979; Kennedy 1983.
work counted as the first English legal textbook, attributed to
Glanvill (Glanvill 1189/1993), alludes in its preface to the prefatory
constitution of Justinians Institutes, and quotes and
relies on that text, although Glanvills book is just a list of
procedures. While this outlook has something in common with
classical Roman law, Roman law as we now
know it is the codified Byzantine product.
41 Bracton c1256/1968-77. Bracton actually plagiarised extensively from the Italian glossator Azo (Maitland 1895).
seventeenth century philosopher of science Bacon was Lord Chancellor
(head of the judiciary); among later lawyer-scientists, in the
nineteenth century Lyell was one of the founders of geology.
44 I will not provide detailed references for this discussion, since references are readily obtainable in recent textbooks: notably Blackshield and Williams 1996/2002; Moens and Trone 1974/2001.
45 See, further, Hughes 1987/1988.
v Queensland (No. 2) (1992) 175 CLR 1; since incorporated in
statute (Native Title Act 1993) but later reduced (Native Title
Amendment Act 1998).
has been demanded for the past 30 years by the Aboriginal Tent
Embassy outside the old parliament house in Canberra.
sole original mention of Indigenous peoples, as the
aboriginal race in each State, was deleted in 1967; it had
been a licence for the States to continue the genocide without
federal interference: Constitution s 51(xxvi). The High Court,
despite several opportunities, has never decided whether this power
for the federal parliament to legislate with respect to any race
can be used only for the benefit of a race.
The Constitution also still allows a State to disqualify all
persons of any race from voting in State elections, which
would also deprive them of a federal vote: Constitution s 25. The
aim of that section seems actually to be to discourage a State from
taking such a step, by making the State forfeit part of its federal
representation; nonetheless, the section contemplates and permits
1934/1960: 228-9. Or, constitutional law.
expression the Commonwealth has a double meaning: it
refers to the whole Australian polity, the Commonwealth of
Australia; but more often it specifies the federal power,
over against the States.
s 109. The High Court has interpreted this section to the benefit
of the Commonwealth.
s 3, absurdly, still states: There shall be payable to the
Queen out of the Consolidated Revenue fund of the Commonwealth, for
the salary of the Governor-General, an annual sum which, until the
Parliament otherwise provides, shall be ten thousand pounds.
records of the framing (http://setis.library.usyd.edu.au/fed) do not
reveal what understanding of separation of powers the
framers may have had in mind: the version that appears to have been
adopted does not follow Locke, Montesquieu or the Constitution of
the USA. (On Montesquieu, see further my Montesquieu in
England forthcoming on this website.) Considerable
difficulty has been caused by placing the Territories power
(Constitution s 122, the Commonwealths power to govern a part
of Australia directly) both outside the chapters dealing with
separation of powers and within a chapter, on the States, where it
seems not to belong. There are two main Territories: the
Australian Capital Territory (corresponding to Washington DC) and
the Northern Territory, which has been pressing for Statehood.
s 128. By statute, voting in all federal elections and referenda is
compulsory. While it is possible for a proposal to go to referendum
with the support of only one house, it is hard to imagine that it
would then be approved by the people. Even with the support of both
houses, a proposal is very unlikely to succeed in the referendum
unless it also has bipartisan support. A further quirk is that
voters in the Territories count in the overall total, although it is
not necessary for the proposal to obtain a majority in any
s 44(i); Sue v Hill (1999) 199 CLR 462.
in the Constitution to the Queen are to Queen Victoria
and to her heirs and successors in the sovereignty of the
United Kingdom: covering cl 2.
Royal Style and Titles Bill 1973 was reserved for HMs
pleasure and received her personal assent (note to s 1 of the Act),
since it concerned her titles. A formal matter, but a demonstration
that this provision was not yet a dead letter.
e.g. Kelly 1995.
Citizenship Act 1948, as now titled.
Re Patterson (2001) 182 ALR 657.
and Williams 1996/2002: 944-955.
v Hill (1999) 199 CLR 462.
(Request and Consent) Act 1985 (Cth).
Durham Holdings v NSW (2000) 177 ALR 436, Kirby J at par 75.
in Blackshield and Williams 1996/2002: 170-2.
1999, proposals for constitutional amendment that would have
exchanged the monarchy for a non-executive presidency selected by
the parliament passed the parliament, against government resistance,
but in the ensuing referendum were not carried nationally or in any
deep rights theory, involving an independence from the
legislature of the judiciary as authentic makers of the common law
and especially as controlling the conceptualisation of sovereignty
(Allan 1993), has not taken root in Australia. It is widely
accepted that the argument is historically mistaken: Goldsworthy 1999;
Durham Holdings v NSW (2000-01) 177 ALR 436.
s 51(xxxi); this provision is fictionally applied in the delightful
Australian film The Castle.
v Commonwealth (1997) 190 CLR 1. The meaning of the provision
that guarantees a trial by jury where there is a prosecution on
indictment for a Commonwealth offence (Constitution s 80) is
judicially disputed; the herrschende Meinung is that it
leaves the federal parliament free to determine what offences shall
be triable on indictment: Cheng v The Queen (2000) 203 CLR
248. The minority view (maintained in that case) is that this
cannot be correct, since it would render the section empty;
however, the minority have not managed to specify what meaning would
v Thompson (1999) 165 ALR 621. The Anti-Genocide Bill 1999 was
a response to this decision.
ss 92, 117.
is, although there must be voting, no individual or group has a
constitutional right to participate in the process.
first non-fiscal legislation of the Australian federal parliament
was a statute inhibiting what the proposer, Prime Minister Barton,
described as Asiatic influxes to the detriment of the
Aryan races: Immigration Restriction Act 1901 (Cth); HR
Debs 7 August 1901, 3497-3503. This statute institutionalised for
the new Commonwealth the White Australia policy, which continued
until the 1970s. Even today, a naturalised Australian Citizen is
not on the same footing as a native-born Australianby a
decision of the High Court, interpreting the federal constitution,
even though no such distinction appears in the Australian
Citizenship Act: Re Patterson; ex parte Taylor (2001) 182
Convention Act 1949 (Cth).
recent private members bill to achieve that, the
Anti-Genocide Bill 1999, failed to obtain all-party support and
foundered in committee on the definition of genocide.
The conventional wisdom is that international law has no effect in
Australian domestic law unless and as specifically incorporated by
statute, although a convention that has been ratified may give rise
to a legitimate expectation: Minister of State for Immigration
and Ethnic Affairs v Teoh (1995) 183 CLR 273; legislation to
reverse this decision has been introduced but not proceeded with.
Recently, however, there has been judicial sympathy for the view
that established norms of international law may be automatically
incorporated in the common law: Merkel J in Nulyarimma v
Thompson (1999) 165 ALR 621.
an introduction to the issues, see Williams 2000. Much of a bill of
rights could be enacted by bringing the provisions of international
conventions into domestic law under the external affairs
power: Constitution s 51(xxix). But it would be difficult to use
that power to enact a recognition of Indigenous peoples and without
such recognition a bill of rights would have a gaping hole. That
hole might be filled by relying on the race power,
Constitution s 51(xxvi), but there are serious problems with the
current interpretation of that power, which the framers undoubtedly
intended to license racial oppression. A statutory bill of rights
could be enacted by the federal parliament with the agreement of the
States: Constitution s 51(xxxvii, xxxviii). But there would be
little point if not all States agreed both to go down this road and
on a particular text, and the chances of that seem remote.
Legislative Council 2001.
Magna Carta, see Clark 2000; the version acknowledged is that of
1297. The Bill of Rights 1689 (1688 old style) applies so far as
suitable to Australian conditions and not superseded by Australian
constitutional or statutory provisions. Its provision as to the
freedom of parliamentary proceedings, s 6, has been adopted by
statute: Parliamentary Privileges Act 1987 (Cth) s 16. However, it
has been judicially doubted that that section of the 1987 Act is
entirely consistent with the freedom of political communication that
the High Court has implied into the Commonwealth Constitution, so
that it is now uncertain how far that section of the English Bill of
1689 now applies at the federal level: Blackshield and Williams
1996/2002: 402-10. Since the implied freedom applies at all levels
of governmentCommonwealth, State and localthe problem
is further complicated.
leading case is Lange v Australian Broadcasting Corporation
(1997) 189 CLR 520.
is both wider and narrower than the corresponding, explicit
provision in the First Amendment to the Constitution of the USA. It
is wider in that it is not restricted to speech and
has been held to include symbolic communication (waving a dead duck
in front of a TV camera in protest against duck shooting). And it
is narrower in that it is restricted to political
communication, i.e. to communication for a purpose related to the
political system; although there is no restriction on the subject
matter of the communication, since anything could be the subject of
89 Blackshield and Williams 1996/2002: ch 8. Just one judge has rejected originalism wholesale: Kirby J in Abebe v Commonwealth (1999) 197 CLR 510 at par 203; Kirby 2000.
v Queensland (No. 2) (1992) 175 CLR 1. In that case, by
recognising native title the Court arguably landed itself in the
contradictory position of recognising Indigenous autonomy in private
law while denying it in public law, with regard to cultures that do
not acknowledge such a distinction between private and public
v Commonwealth (1997) 190 CLR 1.
s 51(xxvi); Kartinyeri v Commonwealth (1998) 195 CLR 337.
In that case, counsel for the Commonwealth argued that the race
power would support legislation similar to the race
laws of apartheid South Africa and of Nazi Germany. The
response of Kirby J was to assert that, where the Constitution is
ambiguouswhich, it being a constitution and hence couched in
general terms, would be nearly everywhereit could be
interpreted by reference to international law: at par 166.
v Commonwealth (2000) 174 ALR 97.
Protection Bill 2001 (Cth).
difference between a statement of purpose and a statement of subject
matter can be hard to discern: which of them, for example, is
acquisition of propertys 51(xxxi)? If the
distinction can be made, it is nonetheless hard to see how any head
of legislative power could be without purpose. The distinction to
be made would then be between those heads that also have an evident
subject matter and those that do not. An example of the latter
would be defences 51(vi). The High Court has
never settled on an evident subject matter of the immigration power,
s 51(xxvii): Blackshield and Williams 1996/2002: 857-874.
98 cp Maurer 1999: 234.
de Kerchove and Ost 1988/1994.
101 Although for other purposes the tradition may be divided and parts of it distributed into other sets, for instance in terms of 'legal families': Zweigert and Kötz 1969-71/1998: 63-73; David and Brierley 1964/1985: 17-21; Varga 1992.
example: administrative law and droit
administratif, although their signifieds are radically
different; but common law, (la) common law (and
variously in German), and general law, droit
commun, allgemeines Recht.
one example, in Roman law natural law appears mainly
under the label justice (iustitia) while ius
naturale is a kind of instinct, shared with animals, of
entitlement (Justinian: Inst 1.2; Dig 220.127.116.11, 1.1.11). For
another, customary law and its equivalents are modern:
in Roman law and through the Middle Ages, including Norman law,
law (or act or statute,
lex, loi, Gesetz) was contrasted with custom
(consuetudo, coutume, Gewohnheit) or usage
(consuetudo, usage, Brauch). There are even
contexts (cp Schmiedel 1966) in which consuetudo could be
translated as legitimate expectation.
104 The following discussion of the expressions 'positive' and 'positive law' draws mainly on HWB 1971-: 'Positiv, Positivität', 'Positivismus'; Kuttner 1936.
commentary by the Neoplatonist Calcidius on Platos Timaeus
distinguishes positive justice (iustitia positiva)
from natural justice (iustitia naturalis) as
respectively artificial and natural. This commentary became widely
known. Its influence, with the distinction between positive
and natural justice, can be traced through to
scholastics of the twelfth century. It accompanied Calcidius
partial Latin translation of the Timaeus, which until the
twelfth century was the only translation of a Platonic dialogue.
106 Dialogus inter Philosophum, Judaeum et Christianum: Abelard 1136-9/1995: 117-18; 1136-9/1979: col 1656; partially quoted, Kuttner 1936: 730.
seems to translate (and in the seventeenth century was used to
translate) Aristotles expression thetic law (νόμους
(Politics 1274 b 4). Aristotle is discussing laws to
regulate procreation, for the purpose of property division.
it appeared in the commentary by Bernard of Botone on the Decretals
(1234) of Pope Gregory IX (Kuttner 1936: 736). This commentary
would later be printed with those Decretals, which were to form the
principal part of the Corpus Iuris Canonici up to 1918.
109 Grotius 1625/1913-25: II.38-9, 44-5; Grotius 1631/1953: I.7.
1968: 15-16. The variety has expanded considerably since he wrote.
1998; cp Benton 1998.
the emphasis is strongly on the methodology of physical science, it
is also known as scientism.
shall summarise what I have written elsewhere: Stewart 1990; 1998.
1982; 1986: 81-4.
this time, the sense of custom that, with the rise of
sociology, would be replaced with the vocabulary of patterns of
social behaviour had already parted company with the legal meaning
1.2.3-4 and 9.
Laws of William, compiled in the late eleventh or early twelfth
century, begin with it: These are the laws and customs (les
leis e les custumes) which King William granted to the people of
England after the conquest of the land, which are the same that King
Edward his cousin held before him. (Liebermann 1903-16/1960:
I.492). A probably contemporary Latin translation gives leges et
consuetudines (Liebermann 1903-16/1960: I.493).
1.2.3-4 and 9; Dig 1.1.6-9, 1.3-4.
the popular must not be confused with the democratic. As Thompson,
studying eighteenth century England, finds: Because law
belongs to people, and is not alienated, or delegated, it is not
thereby made necessarily more nice and tolerant, more
cosy and folksy. It is only as nice and as tolerant as the
prejudices and norms of the folk allow. [...] In Bavaria the last
manifestations of [H]aberfeldtreiben were linked to
mafia-like blackmail, anti-semitism and, in the final stage, to
ascendant Nazism. For some of its victims, the coming of a
distanced (if alienated) Law and a bureaucratised police must have
been felt as a liberation from the tyranny of ones own.
(Thompson 1991: 530-1).
Imperatoriam (prefacing the Institutes) title.
1924; attacked in Malinowski 1926, although Malinowskis
image is vulnerable to Thompsons stricture.
international law would have to be a special case, since in its
law-creating subjects are juristic persons.
is to take existing legal theory not as something to contribute to
but as a social phenomenon. Although there is little space to
analyse it further here, I shall generally assume it as a referent.
Marx commits this error, seduced by his intellectual access to the
texts of political economy into examining ideology as
an internal relation rather than as something encountered.
will not take on board the postmodernist tenet that all is text.
There is, at least, an important difference between reading a text
and being hit on the head with it. During a police investigation in
the former Byelorussia, it is reported:
They falsified evidence. They
hung suspects upside down until the blood clogged their heads and
they were ready to confess. They beat them with fists and boots,
slammed their heads against an office safe, and in one chilling
case, repeatedly hammered the head of a suspect with the thick and
weighty tome, the Byelorussian Criminal Code.
This may have been to
ensure that the suspect had no illusions regarding the legality of
the investigation process, Literaturnya Gazeta reported drily
in its account of the investigation that finally led to the arrest
of the real killer. (The Guardian Weekly 13 March 1988)
Likewise, death is dangerous but
it is not a supplement.
does, however, valuably stress that a legal person is but the
personification of a bundle of legal norms: Kelsen 1945/1961:
93-109, 191; Stewart 1998: 194-5. Thus one can say that in legal
discourse an encounter between real human beings is re-presented as
an abstract relation between legal persons. In particular, an
irrelation between a legally authorised real person and another real
person is re-presented as a relation between their legal
personalities. That re-presentation forms part of the irrelation.
Since a relation between legal persons is abstract, one need not be
surprised to find a legal system in serious difficulty with
concepts, such as causation or proximity, under which a relation
between legal persons is to be determined by reference to
common feature, for example, of the French Code civil.
132 Raz's 'exclusionary rules' (Raz 1975), so far as I can see, simply do not exist. Albeit that his diagnosis of an exclusionary effect is intuitively compelling (Shiner 1992a; 1992b: ch 3).
will give French equivalents, to assist discussion. Neither the
English nor the French expressions are neologisms.
Aristotle /1941: 7; Kant 1763/1960: 783-97; Colletti 1974/1975.
135 cp Kelsen 1979/1991: 224.
the Monty Python dead parrot sketch.
is an extensive feminist literature on exclusion and
silencing, and these concepts have also played major
rôles in critical race theory ever since (at least) Sartres
Anti-Semite and Jew (Sartre 1946/1965), but I want to give
them a more general turn here, with a hope that this turn could
contribute to those debates.
cp Foucault 1961/1967; 1975/1979; Althusser and Balibar 1968/1970: 26-30;
Berger and Luckmann 1966/1971: 132-4.
139 See e.g. Polanyi 1962/1967.
140 Searle terms this 'the Background' (Searle 1995: ch 6).
141 Austin 1955/1975: 4-7.
142 Briefly but succinctly in Speech Acts (Searle 1969: 50-71); then at length throughout The Construction of Social Reality (Searle 1995). Austin quickly dropped it, unsatisfied that he could distinguish 'performatives' as a class of utterances; Searle seems content that at least some utterances can be clearly so classed
143 Searle 1969: 33-4. Searle assumes that rules are either regulative or
constitutive. For many legal rules this does not hold, since they
both establish the possibility of (constitute) a game
and require (regulate) participation in it. An example (of which
Searle himself is fond) is citizenship.
1969: 50-71. I shall not develop here a commentary on the new
institutionalism of MacCormick and Weinberger.
on verbal excluders, Hall 1959/1963
further, Stewart 1987. In particular, the concept of the direct
imaginary introduced there (1987: 916-22) can I think be
developed as a tool for answering two major questions that I shall
not address here. First: can closure ever be complete? I would say
that closure can effect a complete hegemony of determinate reality,
but can never affect the direct imaginary because the latter is not
determinate (and, for the same reason, is not a supplement).
Second: if legal norms are characterised by closure, what price
rights? Much of my possible answer to that is implicit in the
Conclusion to this article. Beyond that, I would speculate on the
possibility of rights in a sense of norms that do not
involve closure, on the criterion that they are compatible with
assuming the priority of the direct imaginary over determinacy.
Such as a right not to be killed, not to be maimed or not to starve.
To construct that argument, however, would involve formulating what
I say about dark performatives compatibly with a
conception of a signifier that does not correspond to a signified
but points directly to (directly imaginary) reality.
general, nothing hangs on whether a word used has an initial
capital. Although in todays English it is relevant that
God has an initial capital, that is not so for
language in which it is normal to give an initial capital to a
nounsuch as modern German or seventeenth or eighteenth
Searle 1969: 73-6. The employment of scare marks, e.g. God,
is one way to effect this distinction.
am not opposing ideology and science:
the opposite of ideology is critique;
science can be ideological or critical.
Park, London, circa 1972.
Australian national anthem begins: Australians all let us
rejoice / For we are young and free. Here is already a
closure toward the countrys Indigenous population, who are
neither young nor free.
distinguish form and content here mainly
to facilitate the exposition.
2000; Thornton 2000.
have not been able to find a source, but I recall hearing in the
1970s that a constitution of Sri Lanka was replaced in the following
way: a national referendum approved the text of a new constitution;
then the members of the parliament declared themselves to be a
constituent assembly, adjourned to a different building, formally
adopted the new constitution, and returned to the parliament
building as the new parliament. In Canberra there is an ideal venue
to adjourn to: the old parliament building, just downhill from the
have drawn particularly upon Searles The Construction of
Social Reality (Searle 1995), which from its title looks like a
retort to the highly constructivist sociological classic The
Social Construction of Reality (Berger and Luckmann 1966/1971),
although Searle does not discuss it. Yet Searles theory of
institutional knowledge is highly constructivist.
Markesinis 1997; 2001. It has not generally been supposed that the
jurist should be at the service of just any legal system or
necessarily at the service of the home system, yet the moral
conditions under which service would be refused have not generally
been set out.
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