Essays on Precedent and Statute

Abstract

This volume comprises eight essays. All eight deal with one question – should we have laws made in courts or in parliaments? I say that it depends – courts are good for some laws, parliaments for others. I conceptualise law as an information product, and lawmaking as an exercise in production. Lawmaking has inputs and outputs, and technology is used to transform one into the other. The input is information – to make laws, we need to know what the world is like right now, how it may change, and what we desire it to be. The output is law. Law may, depending on input and technology, take on different forms: it can be vague or it can be certain. The ‘technologies’ between which we may choose are precedent and statute. Differences between the two being sizeable, our choice has significant repercussions for the cost of the input and the form of the output.

I apply this framework to a number of problems, including the comparison between the common and the civil law, legal history, comparative civil procedure, and EU law. Perhaps most critically, I offer a critique of the ‘efficiency of common law’ hypothesis. That literature argues that judge-made law has an innate tendency to efficiency, and that it must therefore outperform the civil law. On my argument, the judiciary’s advantage is at best conditional. There is no reason to think that statute is always inferior – in many cases it is better. All depends on how individual lawmaking competences are assigned within particular polities – if, say, brute-fact intensive areas are assigned to the judiciary and hierarchically uncertain laws are assigned to the legislature, the system would be more efficient than if it is the other way around. There cannot be a presumption against codification – if my argument is correct, the right question to ask is always whether the time is ripe to codify a particular area of law.

This volume comprises eight essays. All eight deal with one question – should we have laws made in courts or in parliaments? I say that it depends – courts are good for some laws, parliaments for others. I conceptualise law as an information product, and lawmaking as an exercise in production. Lawmaking has inputs and outputs, and technology is used to transform one into the other. The input is information – to make laws, we need to know what the world is like right now, how it may change, and what we desire it to be. The output is law. Law may, depending on input and technology, take on different forms: it can be vague or it can be certain. The ‘technologies’ between which we may choose are precedent and statute. Differences between the two being sizeable, our choice has significant repercussions for the cost of the input and the form of the output.

I apply this framework to a number of problems, including the comparison between the common and the civil law, legal history, comparative civil procedure, and EU law. Perhaps most critically, I offer a critique of the ‘efficiency of common law’ hypothesis. That literature argues that judge-made law has an innate tendency to efficiency, and that it must therefore outperform the civil law. On my argument, the judiciary’s advantage is at best conditional. There is no reason to think that statute is always inferior – in many cases it is better. All depends on how individual lawmaking competences are assigned within particular polities – if, say, brute-fact intensive areas are assigned to the judiciary and hierarchically uncertain laws are assigned to the legislature, the system would be more efficient than if it is the other way around. There cannot be a presumption against codification – if my argument is correct, the right question to ask is always whether the time is ripe to codify a particular area of law.