LAWS2249 Legal Theory U5372230

LEGAL THEORY ESSAY

Peter Canes article, Taking Disagreement Seriously concerns debate
surrounding the roles and relationships between the court and the legislature,
and common law and statute. This paper will mainly explore Canes argument
that where genuine and reasonable disagreement exists regarding fundamental
values, statute is superior to common law in managing these disagreements. This
will be juxtaposed to the Underwood/Kirby argument and chapter 2 of
Waldrons book, The Dignity of Legislation. Firstly, a brief account of the context
that frame the debate will be provided. Next, the view that common law is
superior will be discussed and Canes reasoning for why it should be displaced
will be applied.

The context of Canes article is rooted in recent tort law reform, which is
perceived to have tipped the balance in favour of claimants by stretching tort
liability.
1
In response to this, the legislation was rapidly enacted to make it
harder for litigants to claim damages.
2
Consequentially, this disagreement in
fundamental values sparked debate between the courts and the legislature over
whether common law or statute law should be used to manage disagreement.

The notion that common law should be superior to statute is reflected in the
Underwood/Kirby argument as well as Waldrons book. Justice Kirby and Justice
Underwood both expressed that Tort law had been carefully and consistently

1
Peter Cane, Taking Disagreement Seriously: Courts, Legislatures and the Reform of
Tort Law (2005) 25(3) Oxford Journal of Legal Studies 393, 394.
2
Ibid 395.
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developed through common law and that it should not be subject to interference
from the legislature.
3
Justice Underwood argued that legislation is wielded in
accordance with political belief of the party in power from time to time and that
it is enacted instantaneously and as an immediate response to perceived but
untested, economic factors.
4
Waldron also comments on this, stating that
statutes are perceived to have no roots and are often hastily and
inconsiderately adopted.
5
These set of arguments seem to imply that the
primary responsibility for creating and developing Tort law should be left to the
courts, as legislative modifications are likely to be arbitrary.

Waldrons book raises the argument that statute becomes law only when it
begins to be administered and interpreted by the courts, thus the common law is
superior. It suggests that statute is not law, but merely a source of law.
6
Although
Legal positivism traditionally, had given pride of place to legislation as a basis of
law, modern positivists are more interested in processes whereby law is
developed by judicial processes.
7
A main theoretical critic of the prominence of
legislation in modern government is Friedrich Hayek, who believes that rules
should be regarded as implicit in the practices of a free society, rather than
planned and organised by a legislator.
8
As a result, there is a danger of focusing
on legislation as a source of law, as it is all too human.
9



3
Cattanach v Melchior (2003) 215 CLR 1, 53 [137] (Kirby J); The Hon Justice Peter
Underwood, Is Mrs Donoghues Snail in Mortal Peril? (2004) 12 Torts law Journal 39.
4
Is Mrs Donoghues Snail in Mortal Peril? (2004) 12 Torts law Journal 139.
5
Jeremy Waldron, The Dignity of Legislation (Cambridge University Press, 1999) 9.
6
Ibid 10.
7
Ibid 15.
8
Ibid 21 22.
9
Ibid 24.
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Canes article seeks to displace the view that common law is superior by
analysing both the judicial and political processes of legalisation. Cane argues
that due to little debate and deliberation in Anglo-Australian judicial process,
reasons for the decision tend to vary.
10
This is because it is considered
unconstitutional in the Australian legal system for Judges to consult, discuss or
deliberate between each other in the process of decision-making.
11
As a result,
adjudicative legalisation is a relatively closed process, whereby decisions are
individualistic and uncoordinated, which diminishes its contribution to
coherently developing the common law.

On the other hand, political processes are conducted through methods such as
investigation, deliberation, debate, consultation and many more.
12
This is argued
by Cane to be a better means of resolving dispute. This view is also shared by
philosopher Aristotle, who defended the collective discussions and debates of
legislative assemblies. Aristotle argued that a group tends to be wiser and more
proficient of good decision-making than the individual (the Judge).
13


Cane also argues that because reasons for legislation are not part of the official
documentary record of the legislative process, misrepresents legislative norms
as arbitrary exercises of unreasoned will.
14
However, in reality, the legislature,

10
Peter Cane, Taking Disagreement Seriously: Courts, Legislatures and the Reform of
Tort Law (2005) 25(3) Oxford Journal of Legal Studies 393, 404.
11
Ibid.
12
Ibid 405.
13
Aristotle, Politics (Cosimo, Inc, 2008) 121 122.
14
Peter Cane, Taking Disagreement Seriously: Courts, Legislatures and the Reform of
Tort Law (2005) 25(3) Oxford Journal of Legal Studies 393, 406.
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which is voted in by the majority of society, is supposed to represent the values
and needs of most of society. Therefore, the legislatures powers are bestowed
upon it by the people. This notion is supported by Hart, who argued that in
systems of representative democracy, such as Australia, the sovereign is not
separate from the subjects and the subjects rule themselves through law and
participate in making of laws.
15
Thus, the legislature can be considered an
extension of the values of society at large. Courts on the other hand, are not
chosen by the people and thus, are only confined by precedent. This means that
courts do not necessarily have to take into consideration the current values of
society. As a result, disagreements about fundamental values are best managed
by the legislature, a group specifically chosen by the people to represent the bulk
of societys will and its values.

Furthermore, consistency and stability are important values of the common law,
but strict adherence to precedent forces legal development to a snails pace and
prevents flexibility to the changing values and needs of society. Cane analogises
the manoeuvrability of common law to a stately ocean liner, and legislation to a
showy speedboat.
16
In addition, because adjudicative legalisation is the product
of dispute resolution, changes to the law depends on the types and nature of
matters that happen to appear in court during a certain period of time. Thus,
changes to common law cannot be achieved in a timely manner, when change is
required.


15
H.L.A. Hart, The Concept of Law, 3
rd
ed (Oxford University Press, 2012) 75.
16
Peter Cane, Taking Disagreement Seriously: Courts, Legislatures and the Reform of
Tort Law (2005) 25(3) Oxford Journal of Legal Studies 393, 414.
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Legislative process on the other hand, has the capacity to change in accordance
with societys values and needs. Although it is often accused of being an
instrument that is manipulated by government to promote personal and
sectional interests, it is confined by the will of the people. Additionally, newly
enacted legislation must be consistent with existing legislation and common law.
This acts as a significant limitation on the extent to which the legislature can
ignore considerations of coherence and consistency in the drafting of
legislation.
17
However, it should be noted that political processes are not without
disadvantages, as excessive speed in creation of legislation could prove to be
detrimental to the coherency and clarity of law.
18
A prime example of this is the
statutory modifications to Australian personal injury law, which has been
relatively uncoordinated and caused this area of law to become complex.
19

Therefore, the manoeuvrability of legislation may yield ill-considered and
partial reactions to events. But despite this shortfall, legal development by
legislative legalisation at its best can be both flexible and timely as well as
efficient and comprehensive.

In conclusion, through analysing the arguments in Peter Canes article, as well as
arguments made against him, it can be established that political processes and
statute law is more superior at managing disagreement than common law. This
is primarily due to the pluralistic and open processes of legislative legalisation,
which better reflects the fundamental values and needs of society at large, and

17
Peter Cane, Taking Disagreement Seriously: Courts, Legislatures and the Reform of
Tort Law (2005) 25(3) Oxford Journal of Legal Studies 393, 416.
18
Ibid 415.
19
Ibid 395.
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the ability for statute law to be flexible, timely, systematic and comprehensive.
As a result, Peter Cane successfully displaces the notion of common law being
superior to statute law.






















LAWS2249 Legal Theory U5372230

BIBLIOGRAPHY

Articles/Books/Reports
Aristotle, Politics (Cosimo, Inc, 2008)

H.L.A. Hart, The Concept of Law, 3
rd
ed (Oxford University Press, 2012)

Jeremy Waldron, The Dignity of Legislation (Cambridge University Press, 1999)

Peter Cane, Taking Disagreement Seriously: Courts, Legislatures and the Reform
of Tort Law (2005) 25(3) Oxford Journal of Legal Studies 393

The Hon Justice Peter Underwood, Is Mrs Donoghues Snail in Mortal Peril?
(2004) 12 Torts law Journal 39

Cases
Cattanach v Melchior (2003) 215 CLR 1

Harriton v Stephens (2004) 59 NSWLR 694

McFarlane v Tayside Health Board [2000] 2 AC 59