Comments by John Cairns On Dan Klein’s Four Sets of Nonconflicting Rules
Comments by John Cairns On Dan Klein’s Four Sets of Nonconflicting Rules
The second commentary on Dan Klein’s Four Sets of Nonconflicting Rules (lead essay here, first commentary here) comes from Dr. John Cairns, Professor of Civil Law at Edinburgh Law School.
Dan Klein’s essay on “Four Sets of Nonconflicting Rules” piqued my interest, but what I have to offer is a set of reactions, rather than a coherent argument.
On conflict among rules
As a lawyer, it seems to me that a major role of the judge, at least in the common-law world—in the sense of the legal world where judges play a major role in the development of the law—is generally to reconcile conflicts in rules, rendering them apparent rather than real. Judges and lawyers are skilled at distinguishing between fact situations so rules that may seem to conflict do not do so in practice. So, the system deals with conflicts by saying they do not exist. Also, the courts have a hierarchical structure. The decision of a higher court trumps that of a lower. The skill of distinguishing is one that Roman jurists also evidently possessed in abundance, notably if one looks at their interpretations of the Aquilian liability. This said, the Emperor Justinian later felt he had to legislate away conflicting opinions of the jurists, but that is a different issue.
Of course, conflicting statutes can present a different problem. In the UK, the rule of interpretation is that a later statute trumps an earlier. Parliament is taken to have changed its mind. So, the system is maintained by what may be seen as a fiction. But this rule of interpretation is general: the law assumes, for example, that a later will supersedes an earlier, as a later contract will vary an earlier one.
In addition to a hierarchy of courts, there is a hierarchy of law-making bodies. In Scotland we now have a devolved Parliament; its rules are subsidiary to those of the Westminster Parliament that created it. The Scottish Parliament is not a sovereign Parliament that would answer to no one.
On law without a sanction
By an associative rather than logical link this takes me to the Scotland Act (1999). Some very positivist approaches to law say that what makes a law is that there is an enforceable sanction. Klein cites Pufendorf, Carmichael, and Hutcheson to that effect, quoting the last. Without a sanction it is what the Romans called a lex imperfecta. But the first provision of the Scotland Act (19999), provision (s.1.1), is: “there shall be a Scottish Parliament.”
I rather like this provision, as the late Donald Dewar used it as the basis of a famous speech, improvising on it as if in a jazz solo. The provision (“there shall be a Scottish Parliament”) was seen as very expressive, if without a sanction. Indeed, often such laws without sanctions are given an important expressive role. Why I enjoy the provision is that the Parliamentary drafter just copied it from the Scotland Act 1978: “there shall be a Scottish Assembly”; and it has forerunners in the Government of Ireland Act 1920. But it has been taken as immensely important in expressing the supposed aspirations of the “Scottish people” (whatever exactly is meant by that). Like all sensible drafters of legal documents, the person drafting the act simply searched for a precedent. But in the views of many this would not really be a law, as there is no sanction, a view that seems to me rather limited.
On “jural” and Hohfeld
Klein uses the phrase “jural relations”. For me, this term smacks of Wesley N. Hohfeld and Hohfeld’s analysis of rights and duties. I did a rather unscientific search for use of the phrase. It remains very popular in US legal literature (it seems relatively unusual in Britain). While it can be found in the 19th century (which does not surprise me), I suspect that much of its popularity in the United States stems from Albert Kocourek’s book, Jural Relations, published in 1927. Hohfeld, if different from Kocourek, is undoubtedly the hero of this type of analysis of law and indeed statutes.
There can be little doubt that his type of analytical thinking is valuable. And I cannot help observing that it seems to be property lawyers who are most attracted to it. Indeed, the last time Hohfeld was mentioned to me in conversation was by a young colleague who was a property lawyer discussing the theory of property law. Most analysis in Scots law starts off with discussing the fundamental distinction between rights in rem and rights in personam. Indeed, in teaching first-year Roman law, we are careful to try to get the students to understand the distinction, and indeed its historical relationship to the drafting of the praetorian formulae for litigation. It is both interesting in itself and definitely helps with getting to grips with Scots property law which the students encounter the following year.
As someone who is more historian than philosopher of law, what I tend to find most interesting is the intellectual background of Hohfeld’s work in German analytical legal thinking of the second half of the nineteenth century. I also speculate whether his early death and the collection of his writings by W. W. Cook served to magnify his significance and help perpetuate his memory.
I have never found this type of analytical jurisprudence very interesting, though I would not deny its importance. I am always impressed and intrigued by it. But I just tend to see the world as messier. I see law as influenced by all kinds of factors and indeed as having all kind of aspects. This type of analysis is imposed on the complex reality created by history.
Law is messy
In this I note Klein’s comment in this chapter that laws often conflict. I agree.
I think it is my understanding of the legal world as historical, complex, and messy that attracted me to Smith’s theory of jurisprudence. His theory that justice emerged from human activity and understanding through the mechanisms of sympathy and propriety was plausible. A socially created natural law emerged through human activity. Commutative justice was a human creation that was embodied in laws as society developed courts and legislatures through the increasing division of labour that reflected economic development. While this could be turned into a proto-Marxist historical theory of economic stages, I think it is much richer. Indeed, I think it is no surprise that Smith praises Grotius’s theory of natural law, where natural law would be binding even without a God, and also praises, as Knud Haakonssen has emphasised, the Cocceji (Heinrich and Samuel).