Doin' the transsystemic: legal systems and legal traditions.

• Author: Glenn, H. Patrick
• Position: Canada

Transsystemic legal teaching is a challenge to the western bias against conceiving of law as anything other than that which is positively enacted by the state. A more convincing explanation for the normativity of law is provided by refocusing inquiry on legal traditions. By examining the traditions that form the foundations of particular legal systems, it is possible to gain a fuller understanding of the interrelationship of the laws of the world and to move beyond the theoretical constraints of traditional legal positivism.

L'enseignement transsystemique du droit est un defi au penchant occidental qui tend a ne pas considerer comme du droit tout ce qui n'est pas formellement promulgue par l'Etat. On peut toutefois decouvrir des explications plus convaincantes a la normativite du droit si l'on interroge plutot les traditions juridiques. Examiner les traditions a la base d'un systeme juridique specifique permet de mieux saisir les correlations entre les divers droits du monde et de passer outre les contraintes theoriques du positivisme juridique traditionnel.

Introduction I. The Normativity of Legal Systems and Legal Traditions A. Systems, Traditions, and "Descriptive Sociology" B. The Existence of a Legal System C. An Obligation to Obey the Law? II. The Relations between the Laws of the World A. General and Particular Jurisprudence B. Relations of Conflict and Relations of Conciliation Conclusion Introduction

The Faculty of Law of McGill University has recently embarked on a programme of legal education in which students study simultaneously, in the same classroom, civil and common law subjects. It is commonly, though unofficially, referred to as "transsystemic" legal education. (1) The word says a great deal about how the concept of system has impressed itself on legal education in the last two centuries, but what can it possibly mean? If law is found exclusively within legal systems, how can it be found, and taught (as the prefix "trans" indicates) "across", "through", "beyond", and even "on the farther side of" those same systems? (2) The question raises fundamental issues about the conceptualization of law and about how one should think, and teach, the laws of the world and their relations to one another. It also raises a fundamental challenge to the idea of law conceived in terms of legal systems, probably the most pervasive concept of western legal thought for the last two centuries, now used more or less indiscriminately to describe laws of all provenances and types.

The notion of system comes from the Greek sustema, as assemblage or ensemble, but came into the mainstream of western intellectual life with the development of taxonomic biology in the eighteenth century, using systems as units of analysis. (3) It received great impetus in the twentieth century with the development of informational systems theory, (4) but in law had already come into accepted use by the eighteenth century, (5) such that the French codifiers of 1804 felt it necessary to vigorously disclaim ("Un systeme! Nous n'en avons point ...") any systemic intentions. (6) It has obviously been closely linked to the development of exclusivist state authority (hence the disingenuous French disclaimer) and is thus a product of its times. With what is today described, however, as the decline of the state, (7) the notion of a legal system may also suffer a corresponding decline.

Recent critiques of legal philosophers suggest that, beyond the traditional challenges offered by other ways of thinking about law, the decline of the idea of a legal system is already under way. In spite of the sophisticated character of systemic legal thought, and the genuine analytical progress which it has brought about, it has been described as not "fecond" or adequate for the legal enterprise. (8) Its research programme has been described as "stagnant"; (9) its central concern with the concept of law has been said to be one that "really does not matter all that much"; (10) the debate on the nature of legal positivism, and hence of legal systems, has been said to involve "an increasingly narrow and arcane debate, with less and less at stake." (11) In France it has been observed that the practitioners of legal positivism "do not see beyond the end of their norm" (12) and that there is increasing reluctance to think of law as system, as opposed to a means of dispute resolution or juxtaposition of solutions. (13) A German author has found that "existing frameworks are partially outmoded because the premises of the state systems ... have been eroded." (14) The McGill Programme would thus be paralleled by major developments in the shape of institutional structures in the world and in philosophical thinking. Legal education would necessarily have to track, and even foreshadow, these developments.

The idea of transsystemic legal education is therefore a very contemporary and justifiable one. It may even be seen as innovative, given the historical western bias against teaching anything other than a one, true law (historically, either the ius commune or the law of the state). (15) Yet what is to be taught, and how? Unlike popular music and dance, which are both innovative and ephemeral (Doin' the Do, Doin' the Lawnmower, Doin' the New Low-Down), there are limits to innovation in professional instruction, and the law that is taught should in principle be founded on law that is lived and practised outside the university. Doin' the transsystemic therefore cannot involve inventing the law to be taught, nor concentrating exclusively on law known as international. It should rather involve the teaching of law which is more deeply rooted or profound than the law of legal systems, that which underlies and pervades all of them. This, it will be suggested here, involves reinvigoration of the idea of legal tradition as the necessary foundation of legal systems and as the necessary means of teaching across, through, and beyond them. Reinvigoration of the idea of legal tradition provides benefits, however, beyond those of legal education. It also allows a larger and more convincing explanation of the normativity of law and of the relations between the laws of the world.

1. The Normativity of Legal Systems and Legal Traditions

   Hart famously stated that "the heart of a legal system" is to be found in "the combination of primary rules of obligation with the secondary rules of recognition, change and adjudication." (16) Secondary rules would be rules about rules, (17) and they would provide a means of securing certainty, ordered change, and efficiency in law. (18) These propositions have been enormously influential, while provoking great controversy. They have been influential in providing analytical means of thinking about the structure of state law. They have been controversial largely because of the implication that state law can be identified through the formal operation of secondary rules, with no regard to its content. A bad or evil law is therefore possible, though it may be recognizably a bad or evil law. In the Anglo-American world, Hart has been challenged most vigorously by Ronald Dworkin, defending the existence of legal principles that provide moral justification for law, (19) but there has been deeply rooted criticism elsewhere of law formally defined. (20) This debate has been widely diffused and represents in a sense the tip of the iceberg, the most visible and presentist dimension of the idea of a legal system. A compromise position is evident, and Hart himself in the postscript to the second edition of his Concept of Law acknowledged that "conformity with moral principles or substantive values" could be incorporated into secondary rules as a criterion of legal validity ("soft positivism"). (21) Legal systems could therefore exist that are based on substantive content (though this is of course contested) and the notion of a legal system can be therefore seen as sufficiently elastic to encompass the Hart-Dworkin debate or the debate between "hard" and "soft" positivists. (22)

   In what follows, an effort will be made to engage with the rest of the iceberg--the fundamental, underlying notions and normative deficiencies of the idea of a legal system. The project is not, however, one of destruction but rather of limitation or contextualization. How can one think of, and teach, an idea of legal system that is declining in significance? The process implies that legal systems continue to exist, in some measure, but that they cannot be thought of as they previously were. What replaces, if anything, the loss in explanatory power of the ideas of the state and its legal system? This requires examining a number of features of legal systems, as opposed to the larger idea of legal tradition.

   A. Systems, Traditions, and "Descriptive Sociology"

   Hart stated that the lawyer will regard his Concept of Law as an "essay in analytical jurisprudence" but that it "may also be regarded as an essay in descriptive sociology." (23) The theory of legal systems would thus not be normative or evaluative but would rather be analytical and descriptive. This distinction is fundamental to the theory, since if law is to be identified by its formal characteristics (derived from adherence to secondary rules), it is important to avoid not only moral or normative definitions of legal content, but also moral or normative definitions of a legal system. There could be slippage from one to the other. A legal system would simply exist as an analytical or described phenomenon. The presumption of the existence of such systems is explicitly stated by Hart later in his book, when he states that the purpose of the book is not to provide a definition of law, but "to advance legal theory by providing an improved analysis of the distinctive structure of a municipal legal system ..." (24)

   There are at least three problems with this position. The first has been the object of comment and is to the effect that Hart...