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Varuhas, J N E --- "Taxonomy and Public Law" [2018] UMelbLRS 3

Last Updated: 17 September 2018

TAXONOMY AND PUBLIC LAW

Jason N. E. Varuhas¹

Without good taxonomy and a vigorous taxonomic debate the law loses its rational integrity ... some forms of thought and language ... make legal taxonomy almost impossible and thus undermine the law’s rationality. All forms of appeal to very broad ideas tend to allow intuition to operate unrestrained by an analysis anchored in authority. Every fundamentalist believes his values make for the public good, and the more zealous he is the less he will be able to bear in mind the possibility that he may be mistaken ... It is essential to come to the law armed with a belief in the fallibility of intuition and a consequent aversion to all forms of thought and expression which are no more than vehicles of the gut reaction. Interpreters must consent to be prisoners of their own expertise.

P Birks, ‘Equity in the Modern Law: An Exercise in Taxonomy’ [1996] UWALawRw 1; (1996) 26 University of Western Australia Law Review 1, 22.

NTRODUCTION

This paper takes the first steps towards developing a legal taxonomy of public law fields, systematically identifying, mapping and explaining different categories of law that are typically identified with English public law.

Legal categorization is fundamental to full understanding of the law, rigorous and complete legal analysis and coherent and rational legal development. Yet legal taxonomy and debates over legal categorization have not been a significant feature of public law scholarship, in contrast to contemporary private law scholarship. This paper begins by exploring the reasons for this general absence of work in legal categorization including that the very notion of public law was long unknown to English law and is steeped in theoretical disagreement, that modern legal taxonomers have followed their Roman forebears in focusing on private law, and contemporary trends in legal scholarship away from doctrinal work, and particularly doctrinal scholarship that looks across different fields of law. The paper goes on to argue that legal categorization is of fundamental importance, especially in the light emergent trends towards open-ended balancing in public law adjudication. Legal categorization enhances our understanding of the law, and facilitates right answers to legal questions, maintenance of a rationally ordered system of law and coherent legal development. Legal taxonomy promotes formal rule of law principles whereas approaches that eschew categorization, such as open- ended case-by-case balancing, are likely to radically undermine those principles and imperil the coherence and stability of the legal system. Legal scholars are uniquely well-placed to undertake analytical doctrinal work, including legal taxonomy, and such work therefore offers

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