Introduction
Our topic this week is “holism,” more particularly the idea that
theories of the law are (or “should be” or “can be”) holistic. Legal
holism can be captured in a famous slogan, “The law is a seamless web,”
and the contemporary legal theorist who is most associated with legal
holism is Ronald Dworkin.
And before we get on with it, a brief digression on the origins of
the phrase. The idea of the law as a seamless web seems to be derived
from a related idea–that thistory is a seamless web–found in the
writiings of Frederic Maitland: "Such is the unity of all history that
any one who endeavours to tell a piece of it must feel that his first
sentence tears a seamless web." Frederic William Maitland, A Prologue
to a History of English Law, 14 L.QUARTERLY REV. 13 (1898).
The Law is a Seamless Web
The idea that the law is a seamless web is familiar to almost every law student, but what on earth does this phrase mean?
I think the best initial approach to this idea is to place it in the
context of a common-law system. Suppose we have an unsettled question
of law (e.g. a question about proximate causation in tort law). The
question is unsettled in our jurisdiction, so there is no binding
precedent—no prior decision of a higher court addresses the issue. But
the lack of binding precedent does not imply that precedent is
irrelevant to our question. The judge deciding our case with a tricky
proximate cause question will want to look at the cases that deal with
analogous issue. Her search for relevant case law might begin with
cases on causation in tort law, but from there, it could lead to other
issues and distinct doctrinal fields. For example, causation in tort is
analogous to causation in criminal law. So our judge might base her
reasoning in part on the way an analogous question was decided in the
criminal context. And causation also arises in a variety of other legal
contexts, leading our judge to move from fields that are closely
related to torts, to more distant topics, including environmental law,
administrative law, or even tax. Moreover, questions of proximate
causation are only partly about causation, they also involve judgments
about responsibility and reasonableness of conduct. In a common law
system, the law is a seamless web in the sense that common-law ideas
connect with one another in complex relationships of consistency and
mutual support. A tremor in one region of the web of the law can in
principle resonate in other region.
Coherence and Holism
The idea that holism involves wide and deep relationships of
consistency and mutual support can be captured by introducing a related
notion coherence. We might say that legal holists believe that
a principle of coherence applies to the law as a whole. Each
proposition of law ought to be consistent with every other proposition.
Coherence can require more than mere consistency, however. A system of
law achieves coherence at a deeper level if the normative
justifications for legal propositions are consistent and mutually
supporting.
Cohererence can be local or global. The theory that the law is a
seamless web can be rephrased as “the law is globally coherent,” and we
might call that view “global legal holism.”
Herculean Holism
Ronald Dworkin’s theory, “law as integrity,” takes the idea that the
law is seamless web to its logical conclusion. Dworkin illustrated his
theory with an imaginary judge, Hercules. Because Hercules acts on the
basis of the premise that the law is a seamless web, Hercules is
required to construct the theory that best fits and justifies the law
as a whole in order to decide any particular case. Given the holistic
assumption that a change anywhere in the law can produce consequences
everywhere, Hercules must constantly revise his theory—checking to
assure himself that a recent change in the law of trusts does not have
consequences for the best interpretation of the reasonable person
standard in torts.
Of course, actual judges are not like Hercules in this regard. No
actual judge could possible construct a theory of the whole law of her
jurisdiction. Actual judges must make do with theories that are local rather than global
in nature. This is not to say that no actual judge has a tacit (or even
partially explicit) view about the way the law hangs together as whole.
Indeed, some real world judges have views that account for many
different regions of the law. The most intellectual judges (Richard
Posner, for example) have comprehensive legal theories that provide
consistent explanations across many different doctrinal fields. But
even these Herculean judges cannot actually produce a theory that fits
and justifies all of the law—that would take longer than a human
lifespan permits and most of the work would be terribly dull.
Holism versus Particularism
So far, I’ve been presenting a fairly sympathetic view of legal
holism. But holism is a controversial view in the law. One might
believe that holism is domain specific. That is, it might be the case
that all of tort law hangs together, but that tort law is a more or
less closed system. It could be the case that criminal law operates on
a different set of principles than those that operate in tort, and
hence that conclusions reached in criminal law are different from those
reached in tort law on analogous questions. Of course, the domain of
coherence could be a higher or lower level of generality than doctrinal
field. Perhaps, perhaps all of private law is coherent, but public law
operates on different principles. Alternatively, perhaps the common law
and statutory law form two different fields—each coherent within its
own realm but not consistent with each other. Moving to the other end
of the spectrum, it might be that the law governing the tort of
negligence is coherent, but that negligence and battery operate on
entirely different principles.
At the opposite end of the spectrum from global legal holism (“The
law is a seamless web.”) there is at least logical space for a local
legal particularism (“Take each case on its own merits.”).
Is Holism Normative, Descriptive, or Interpretive?
Before we come to a close, let’s address one final question: what
kind of theory is legal holism? You may have notice that I’ve been
deliberately ambiguous in my phrasing of holist claims using locutions
like “is or ought to be.” One view of global legal holism is that it is
a normative claim: the law ought to form a seamless web. Why?
Well, that’s a big question, but one cluster of reasons for preferring
consistency in the law centers around the rule of law values of
predictability, certainty, and publicity.
Another view of global legal holism is that it is a descriptive
theory. As a matter of fact, judges (in common law systems) strive for
consistency. The phrase—the law is a seamless web—is couched as
a descriptive claim. Of course, this will be a special sort of
descriptive claim, because no one thinks that the law actually is fully
consistent at the global level.
Yet another view of global legal holism is that it an interpretive
theory. On this view, legal holism bears a relationship to the idea of
the hermeneutic circle. The meaning of any given legal rule must be
interpreted in light of the whole set of rules, and the meaning of the
whole set depends on the meaning of the particular members. On this
view, holism is quasi-descriptive and quasi-normative: legal
interpretation both is imperfectly holistic and legal interpretation aims at global consistency.
Conclusion
The distinction between holism and particularism is quite useful.
Once you begin to look, you will quickly find that many legal arguments
depend on implicit assumptions about the presence or desirability of
coherence in the law. In particular, it often edifying to look for how
some legal arguments turn on assumptions about whether coherence should
be global or local.
(Last revised on October 25, 2009)