A forthcoming collection, Jurisprudence in the Mirror, displays similarities and differences in both practice and theory across the divide between civil law legal systems (e.g., those of Continental Europe and Central and South America) and common law legal systems (like those of U.S. and the UK). In the book, each chapter offers civil law scholars discussing a single topic of legal theory or legal practice (e.g., legal validity, sources of law, and legal interpretation, and legal reasoning) followed by a commentary on the chapter by common law scholars. In The Systematization of Legal Norms: A Response to Navarro and Rodríguez, which will appear in Jurisprudence in the Mirror, Andrew Halpin represents the common law world, and is commenting on civil law scholars, Pablo Navarro and Jorge Rodríguez,1 who had as their topic, deontic logic.
By way of background, deontic logic, the logic of norms (including legal norms), is an oft-discussed topic in civil law countries, but one that has been given relatively little attention in common law countries. There are well-known complications to the project of deontic logic: e.g., norms themselves (e.g., “do not park here”) do not seem to be the sort of things that can be true or false, in which case, how is a logic of norms possible? One standard response–a response adopted by Navarro and Rodriguez (P. 7)–is to move from norms to norm propositions (e.g., “the law states: ‘do not park here’”), where such propositions do seem subject to characterization as true or false. Halpin’s argument in this piece, however, is not focused on the abstract level of whether or how logic is possible about normative matters, but rather on a more concrete level, regarding Navarro and Rodriguez’s effort to show that deontic logic is useful in understanding and developing the law (in either civil law or common law legal systems).2
Halpin’s critique focuses on “the apparent space between the law as found in authoritative norms and the judgment that needs to be made to dispose of a particular case” (P. 1). Theorists of common law reasoning often raise this problem when discussing the operation of precedent, but it is also an important aspect of statutory interpretation. The authoritative text that count (at any given time) as “law” is a smaller set of resources than what courts refer to in resolving disputes; additionally, in resolving disputes, the courts sometimes alter the legal rules. This leads to a well-known problem: if courts are not bound by (limited to) existing authoritative sources, but have the power both to go beyond and also to modify the rules (adding exceptions, etc.), then in what sense are the authoritative sources even authoritative (“binding”)?
Navarro and Rodriguez respond to the problem with a picture of norms that are part of a system, and the applicable norms regulate the defeasibility of existing legal rules: when a court should (and when it should not) modify a rule, perhaps by adding an exception, to resolve the dispute before it. As Halpin summarizes the project, Navarro and Rodriguez’s “enterprise [is] to produce a logical systematization of legal norms.” (P. 7.) More specifically, Navarro and Rodriguze provide an analysis involving “the recognition of a general norm and the recognition of another norm providing an exception, in order to derive the specific norm providing an obligation or permission in a particular case, as a process of deduction.” (P. 5.)
Using examples from standard types of common law decisions (including well-known cases, like Riggs v. Palmer and Donoghue v. Stevenson), Halpin illustrates how the courts in practice do not so much deduce answers from the legal materials as work with the legal materials to develop the law, combining norms, taking into account their relative weight, often with particular attention to the application to the facts before the court, rather than any sort of more straightforward deduction or simple calculation of exceptions.
Halpin is, in the end, suspicious of the value of deontic logic to lawyers and judges – in either civil law or common law systems. “Refining a logic of norm-propositions in order to attain consistency and completeness for a particular system of norms is, on this view, a misguided project … [I]f the system were already perfect we wouldn’t need the logic; if the system were imperfect, the logic wouldn’t help us.” (P. 11.)
- Navarro and Rodriguez are co-authors of an important book on deontic logic, Deontic Logic and Legal Systems (2014)
- Halpin’s discussion, beyond the critique of Navarro and Rodriguez, also contains some interesting observations on the differences between common law and civil law traditions, not least on the role of academics and the importance of systematization (or resistance to it) (Pp. 2-3).
