The broad question which seemingly underpins many of the essays in this book is this. Is private law like love? That is to say (according to Professor Weinrib who provoked the question but who has not contributed a chapter) does private law, like love, have no goals? Now of course one's first reaction to such a question is likely to be similar to Professor Hedley's reaction: this “remark is very puzzling, even as a comment on love (p. 197 note 21). For questions “about what love is for are routinely asked in literary criticism, social theory, theology cultural studies, developmental psychology and reproductive biology”.
So much for silly questions one might think. But in fairness it has to be said at once that there are a number of the contributors – too many to do any of them justice – to this book who do not share the Weinrib view. And some of these essays – one might note for example Charles Webb's criticism of Peter Birks' classification of private law by causative event (Chapter 9) – make important contributions to what might be called the taxonomical debate, if not to legal thought in general.
Moreover the ‘anti-instrumentalist’ project is not new. The history of the civil law could be summed up – though perhaps it ought not to be – as a history of the search for ever more coherent models of law capable of providing solutions uniquely through syllogistic logic. These epistemological concerns have not disappeared. Some jurists are trying to ground law in the supposedly objective reality of economics so that they can both explain law through a causal scheme of intelligibility and test legal propositions through correspondence with this ‘reality’. Others, like some of the contributors to this book, are turning once again towards coherence as the means of justifying legal assertions (critically discussed by Roderick Bagshaw, pp. 255–6, and Andrew Robertson, pp. 271–2). Thus Professor Stevens asserts that “[r]esolving the conflicts between the rights of one another does not depend upon wider social policies or goals, as rights do not take the justification for their existence from such concerns” (p. 164). However one does not have to subscribe to the law and economics school to be profoundly sceptical about this coherence theory. Jurists interested in epistemology, many of whom are comparativists, realise, like Professor Hedley, that even if one could fashion the ideal model of legal axioms the notion that such a model could somehow be divorced from external disciplines and thinking is epistemologically absurd. “Neither internalism nor externalism”, says Professor Hedley, “is viable on its own” because it makes no sense to separate the inside from the outside (pp. 213–214).
Rights, according to this thesis, appear to have an existence of their own in some Hohfeldian system. Yet even if such a system could be said to ‘exist’ it can function only through application by human minds and these minds, when they reason, apply schemes of intelligibility that are far more complex and wide ranging than the structural (system) and causal (if right P exists, then solution Y follows) schemes that seemingly back up the logico-deductive method that attaches to such axiomatic structures. Social scientist theorists have long appreciated that within these sciences there is an ongoing struggle between explanation and understanding which manifests itself in a dialectical tension between methods (causality versus hermeneutics). Accordingly no system – or at least no system that uses natural language (as opposed to numbers) – is every truly isolated from other knowledge because all schemes need to be applied and the application processes are not uniquely rooted within the system itself. Resolving conflicts between rights involves reasoning and reasoning is embedded in wider goals because reasoning itself concerns the relation between the system and a set of facts both of which inter-react like astrophysics and mathematics. Thus when a judge searches a solution uniquely from, say, a rights system, social goals are embedded both in the concepts used by lawyers to construct social reality (pleural plaques are or are not ‘damage’) and in the schemes of intelligibility and paradigm orientations brought to bear by the intellectus on the res.
No doubt professors can assert that judges ought not to use functional schemes: they must use only the structural, causal and strict Dworkinian-like hermeneutical methods which in turn will translate into a deductive (or sort of deductive) reasoning model (in the sense that one arrives at a solution seemingly only by reference to the system). But such detached structuralism will not alter the reality that barristers will use any scheme that advances the interests of their clients and that most judges will view judging as a social activity designed to achieve social justice. Or put another way, judges are not interested in being told what to do by academics; and, even if they were and instrumentalism was pushed out the front door, the way facts are constructed will soon permit the expelled resident to re-enter by the window. As Roderick Bagshaw notes (but in fairness quoting him slightly out of context), “nobody really puts coherence ahead of beneficial consequences for human beings” (p. 256). Moreover to propose some totally idealist position that has little epistemological justification – although it might well have some sort of individualist ideology justification – means that serious social scientist theorists will regard law as having little or nothing to offer others outside the discipline. Social scientists will simply not take law seriously. Indeed they may wonder whether a degree in astrology or numerology is as intellectually valid as a degree in law. No doubt the ‘anti-instrumentalists’ (as the book calls them) will not be bothered by the views of such externalists, but should we, as an academic community, be publishing books that will be of no interest – indeed may be laughed at – by those outside the discipline?
Perhaps it is unfair to focus just on Professor Stevens' contribution. Donal Nolan's (Chapter 7) claim that ‘loss of a chance’ is ‘epistemological’ and therefore not objective is another assertion that many epistemologists would find puzzling. If such loss is not ‘objective’ then so much of what lawyers take for granted should be written off as ‘epistemological’. When a corporation sues for damages in defamation and does not have to prove damage this is presumably an ‘epistemological’ person suffering ‘epistemological’ damage? When severe mental distress, which prima facie is not legal ‘damage’, is differentiated from ‘bereavement’, which is legal damage, are we in the world of objective psychology or epistemological fantasy? Loss of a chance is constructed by exactly the same system that constructs certain groups (but not others) as legal persons and of course de-constructs pleural plaques as damage and group defendants as a ‘collectivity’ (p. 174). Dr Nolan is entitled to his view that the claimants in Fairchild should have been turned away from the courts empty-handed, but it might be a good idea for him to leave out references to epistemology since much of what he says – and what anti-instrumentalists as a whole assert – really belongs more to a ‘coherence’ ideology (although some ‘anti-instrumentalists’ like to call it moral philosophy) than epistemology (do not worry about putting the activity risk on workers just marvel at the architecture of the system).
But, this said, the real criticism that might be directed at many of the essays in this collection is one of cowardice. There is no paper that engages with Professor Waddam's excellent, and possibly definitive, destruction of what Professor Hedley calls the ‘interpretative’ school (there is one page reference to him in the index). It goes without saying, of course, that no one engages with Professor Hedley (whose contribution in itself makes the book worth buying). One understands why: in the battle to construct a creditable epistemological model of legal reasoning the anti-instrumentalists would lose (or perhaps one should say, be laughed out of court).
