Extract from Iain Stewart, 'Structure of the Australian Legal System', paper submitted to XVIth Congress of the International Academy of Comparative Law, Brisbane, 14-20 July 2002
Summary / Sommaire
The 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 j'en recherche les raisons d'ordre théorique et propose un nouveau type de concept du droit, qui devrait assurer cette distinction. Ce propos s'appuie également à d'autres raisons du même ordre, et en plus aux raisons d'ordre 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 d'une histoire particulière.
1 Approaches in Comparative Law
'If I were you, I wouldn't start from here' (alleged Irish saying)
'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.' (Pfersmann 2001: 275-6).
The first of those propositions may seem overstated, yet it does appear to fit the initiators of these Congresses, Lambert and Saleilles (cp. Jamin 2000). If a positive legal order is understood in terms of 'sources' and if legal doctrine (la doctrine) is elevated to being the primary source, then doctrine written by the comparatist becomes transnational positive law. Perhaps such an outlook is no longer espoused, yet 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 (Pfersmann 2001: 277, 280; Izorche 2001; Samuel 2001).
Pfersmann finds all four of these 'beliefs' inadequate. Their primary fault is that they proceed from 'the illusion of a legislator-jurist, whether through projection of an ideal order or through claiming capacity to produce one'. They involve 'the naturalistic sophism that induces the jurist's habitual fantasy of believing oneself to be a producer of ideal rules inasmuch as one is an expert on positive rules' (Pfersmann 2001: 277, 279). Pfersmann identifies the problem as epistemological and ontological, and tries to locate its source in the nature of a positive legal order. He runs into difficulty there, I think because the principal source of the difficulty may instead have been a background assumption of the era in which Lambert and Saleilles wrote. This is the evolutionist ideology, sometimes tendentiously labeled 'Social Darwinism'. Its high priest was actually not Darwin but the now almost forgotten Herbert Spencer, whose combination of philosophy, religion and unified science included a doctrine of natural law. This doctrine was a site of the 'naturalistic fallacy' which Moore denounced (Stewart 1997). What may have happened in comparative law is that an idealisation of positive legal order was projected as the content of that natural law (cp. Pound 1952), so that the comparatist's 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 positivist outlook. This outlook is not yet extinct: it underlies a systems-theoretical approach such as that of Luhmann. However, it is no longer orthodox. More interesting now is the possibility that Pfersmann may be correct so far as he identifies a continuing risk in a combination of transnationalist doctrine with what he terms an epistemological and ontological 'closure' of legal orders (Pfersmann 2001: 278).
Pfersmann has a separate objection to the third belief, 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 different moments' (Pfersmann 2001: 280). This seems to me unfair, in 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'. One can, however, suspect that such a commitment is too readily accepted as obvious, through a closure of the local legal order to alterity, whether foreign or domestic.
The closure that Pfersmann 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' (Pfersmann 2001: 277-8).
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, the problem is then merely inverted and it is the expressions "national laws (droits nationaux)" or "legal systems" that no longer make sense'. 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 Alyosha Karamazov's old moral fear-if God did not exist, everything would be permitted-one could reply that in science, at least at this basic level, one should be avoiding moral censure anyway. At any rate, it is a long time since the Sovereign King lost his head and the God-State vanished away. Why 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 else's.' (Stewart 1998: 181-2)
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 'law'. This phenomenon (I shall say intuitively, and there seems no other way to recommence) consists centrally of norms that appear as simply to be obeyed-to 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, Kelsen's 'pure theory of law', foundered in self-contradiction (Stewart 1990; 1998). 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 some even wider category-sometimes pursuing the fallacy that breadth is intrinsically a positive quality of a definition. 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 doomed to conflict between effects of that principle's absence in the core of the model and effects of its presence in the disciplines that are summoned to fill the model out (Stewart 1981; 1998). 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.
If the game is 'closure versus alterity', Pfersmann's indication is that the closure is located in the relations between norms. I think there is a better way, for both theoretical and empirical reasons. I will take the Australian legal system as an example of the empirical point.