Unitary Law Re-form, Pluralistic Law Re

Louisiana Law Review
Volume 67 | Number 4
Symposium: Law Making in a Global World
Summer 2007
Unitary Law Re-form, Pluralistic Law ReSubstance: Illuminating Legal Change
Roderick A. Macdonald
Repository Citation
Roderick A. Macdonald, Unitary Law Re-form, Pluralistic Law Re-Substance: Illuminating Legal Change, 67 La. L. Rev. (2007)
Available at: http://digitalcommons.law.lsu.edu/lalrev/vol67/iss4/7
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Unitary Law Re-form, Pluralistic Law Re-Substance:
Illuminating Legal Change
Roderick A. Macdonald
TABLE OF CONTENTS
Prologue ............................................................................
1114
Introduction: Before the Prism ...........................................
1116
I.
The Form of Legal Change: Additive PrimariesSeeing Same-Sex Marriage ................................................
1122
A. Legislation-Statute, Enactment: Green ................. 1126
B. Custom-Practice, Interaction: Blue ........................... 1130
C. The Common Law-Precedent, Adjudication: Red ....1133
D. Tradition-Supereminent Principles, Phronesis:
W hite ..........................................................................
1138
II.
The Substance of Legal Change: Subtractive PrimariesDoing Commercial Law Reform ........................................ 1141
A. Monism-Effacing Social Facts: Yellow .................... 1145
B. Centralism-Relativising the State: Magenta .............. 1149
C. Positivism-Interpretation: Cyan ................................ 1151
D. Prescriptivism-Beyond Legal Subjectivity: Black .... 1154
Conclusion: After the Rainbow .........................................
1157
E pilogu e ............................................................................
1159
Copyright 2007, by LOUISIANA LAW REVIEW.
F.R. Scott Professor of Constitutional and Public Law, McGill
University; Fellow, Pierre Elliott Trudeau Foundation.
I am grateful to Hoi Kong of Queen's University and David Sandomierski
(B.C.L./LL.B. 2007) for their critical read of the initial version of this article. I am
also pleased to acknowledge the helpful comments of participants at the Law
Making in a Global World Symposium at which this initial version was delivered.
*
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4LOUISIANA LA W REVIEW
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PROLOGUE
The theme of this symposium, Law Making in a Global World,
can be iterated in two ways, depending on how one understands the
term "law making." We might imagine how "globalization" affects
the manner 'inwhich domestic law is conceived, instantiated,
brought into force, interpreted, and applied. Or we might imagine
how "global law" as transnational law is itself conceived,
instantiated, brought into force, interpreted, and applied. The very
possibility of these two readings, which signals the internal and
external dimensions of legal change, evokes the central ideas I seek
to develop in the two main Parts of this article.
The headlong rush of many States, notably in Central Europe,
the "-stans,"' Africa, and South America, to adopt the latest
commercial laws of the Western market economies is a clear
reflection of the former reading.E But it is only half the story. The
refusal of States in Western Europe, North America, and Australasia
to both acknowledge the reciprocity of legal transplantation 3 and to
attend to the local variations of their own official law, especially in
fields like family law, is the other half of the story.
The zeal of States to invest in international legal institutions of
all kinds, from the ICC through to the WTO, and in international
instruments of all kinds, from the Conventions of UNIDROIT and
1. For example: Tajikistan, Kazakhstan, Kyrgyzstan, Uzbekistan, and
Turkmenistan.
2. For a good conspectus of challenges and developments of commercial
law reform in the North Atlantic trading block, see SECURITY RIGHTS IN
MOVABLE PROPERTY IN EUROPEAN PRIVATE LAW (Eva-Maria Kieninger ed.,
2004).
3.
See generally ADAPTING LEGAL CULTURES (David Nelken & Johannes
Feest eds., 2001) (on problems of cross-tradition law reform). The essays in
DROIT
QUEBECOIS
ET
DROIT
FRANCAIS:
COMMUNAUTE,
AUTONOMIE,
CONCORDANCE (H. Patrick Glenn ed., 1993) [hereinafter DROIT QUEBECOIS ET
DROIT FRANCAIS], and in LA CIRCULATION DU MODELE JURIDIQUE FRANQAIS:
JOURNEES FRANCO-ITALIENNES DE L'ASSOCIATION HENRI CAPITANT POUR LES
[hereinafter LA
AMIS DE LA CULTURE JURIDIQUE FRAN;AISE (1994)
CIRCULATION DU MODtLE JURIDIQUE FRAN;AIS] explore the point from the
perspective of the French civil law tradition.
4. This is true both in unitary States, where local variation of national law
tends to be informal, and in federal States, where it flows from the necessary
institutional arrangements of federalism. In the latter cases, the reciprocal
constitutive influence of federal and state law is rarely acknowledged. But see
the essays collected by the Canadian Department of Justice, and in particular,
Roderick A. Macdonald, Harmonizing the Concepts and Vocabulary of Federal
and Provincial Law: The Unique Situation of Quebec Civil Law, in THE
HARMONIZATION
OF FEDERAL LEGISLATION WITH QUEBEC CIVIL LAW AND
CANADIAN BuURALIsM 29 (1997) [hereinafter THE HARMONIZATION], and
Encoding CanadianCivil Law, THE HARMONIZATION, supra, at 135.
2007]
ILL UMINA TING LEGAL CHANGE
1115
UNCITRAL, to regional trade treaties like NAFTA and
MERCUSOR, is an example of the second reading.5 For many
international norm entrepreneurs, generating a world legal order
with its own indigenous transnational law appears to hold out the
best hope for peace and economic prosperity.
It is, obviously, much easier to conceive of law and legal change
as exclusively a matter of those artifacts with which one is familiar,
over which one has control, through which multi-lingual versions
may be easily produced, and by which one can avoid the messiness
of social and political diversity. 7 Yet preoccupation with these
formal artifacts of law and their subjacent ideology of universalizing
5. The literature on these various international instruments is immense.
For the latest developments in the field of secured transactions, which will be
discussed in detail in Part II of this article, see the following websites: Asian
Development Bank, Law and Policy Reform at the Asian Development Bank
(Apr. 2000), available at http://www.adb.org/Documents/Others/LawADB/
lpr2000_l.pdf; European Bank for Reconstruction and Development, Model
Law on Secured Transactions (1994), available at http://www.ebrd.con/pubs/
legal/secured.pdf; Organization of American States, Sixth Inter-American
Specialized Conference on Private International Law ("CIDIP-VI"), 2002,
Model Inter-American Law on Secured Transactions, available at
http://www.oas.org/dil/CIDIP-VI-securedtransactionsEng.htm; United Nations
Commission on International Trade Law ("UNCITRAL"), Working Group on
Security Interests, Draft Legislative Guide on Secured Transactions, U.N. Doc.
A/CN.9/WG.VI!WP.3 l/Add.1 (Nov. 22, 2006), available at http://www.uncitral
.org/uncitral/en/commission/workinggroups/6Securitylnterests.html
(follow
"A/CN.9/WG.VI/WP.3 1/Add. 1-Draft
legislative
guide
on
secured
transactions" hyperlink); The World Bank, Principles and Guidelines for
Effective Insolvency and Creditor Rights Systems (Apr. 2001), available at
http://www.worldbank.org/ifa/ipgeng.pdf [hereinafter World Bank, Principles
and Guidelines].
6. Not all commentators or international law reformers agree. Today, the
argument for vernacular law is often framed in opposition to coordination
movements in Europe. See, most notably, Pierre Legrand, Against a European
Civil Code, 60 MOD. L. REV. 44 (1997); Pierre Legrand, European Legal
Systems Are Not Converging, 45 INT'L & COMP. L.Q. 52 (1996); Pierre Legrand,
On the Unbearable Localness of the Law: Academic Fallacies and
Unseasonable Observations, 10 EUR. REV. PRiv. LAW 1, 61 (2002). See also
Nicholas Kasirer, The Common Core of European Private Law in Boxes and
Bundles, 10 EUR. REV. PRIV. LAW 3, 417 (2002) (setting out a more balanced
perspective). On the limits of legal transplants as instruments of economic
development, see generally LEGAL CULTURE (David Nelken ed., 1996);
Jonathan Miller, A Typology of Legal Transplants: Using Sociology, Legal
History and Argentine Examples to Explain the Transplant Process, 51 AM. J.
COMP. L. 839 (2003); Brian Tamanaha, The Lessons of Law-and-Development
Studies, 89 AM. J. INT'L L. 470 (1995).
7. See Roderick A. Macdonald, Triangulating Social Law Reform, in
MAPPING SOCIETY THROUGH LAW 119 (Ysolde Gendreau ed., 2004).
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6LOUISIANA LA W REVIEW
[Vol. 67
formal rationality occludes the informal localization and
8
particularity that inevitably accompanies over-reaching generality.
This article takes a legal pluralistic perspective to explore
several dimensions of law making in a global world. It does so
through an extended metaphor of light and color. 9 The metaphor is
meant not just to illuminate, but to illustrate two foundational ideas.
It aims, that is, at achieving a performative effect' 0 by first focusing
attention on the complexity of determining how the various forms of
legal normativity combine within any particular legal regime, or the
plurality of modes of law (Part 1), before noting that legal change
occurs within and between political States, often without any
reference to the law of the State, the plurality of sites of law (Part
II). Substantively, this article uses domestic debate about the
recognition of same-sex marriage to ground Part I and international
debate about secured transactions reform to ground Part 11.
INTRODUCTION:
BEFORE THE PRISM
The light we perceive in the visible spectrum presents itself in
a singular, undifferentiated fashion. Our most common, though
typically unconscious, experience of the phenomenon is, of course,
sunlight. We understand perfectly well what is meant when
someone says to us, "It's light outside," or, "It's nighttime." What
is more, in the normal course of life's events we do not typically
attend to the quality of light we perceive. We may, to be sure,
worry about its intensity: for example, we notice the difference
between a dull day and a cloudless day, and we turn on a bright
light to read. Still, unless we have some special reason for doing
8. The locus classicus is Boaventura de Sousa Santos, TOWARDS A NEW
COMMON SENSE
(1995).
9. On the justification for and use of metaphor in law, see Richard Janda &
Daniel Downes, Virtual Citizenship, 13 CAN. J.L. & SOC. 27, 30-37 (1998). In
particular, I use the metaphor of light to:
[P]roject a set of implications upon a primary subject ....
Metaphorical image schemata not only create a propositional
connection between two highly delineated domains of experience but
also give rise to a structure according to which experiential relations
and connections are established . . . . [T]he acquisition of new
knowledge is always based on the forward reach of metaphor ....
Id. at 31-32 (referencing George Lakoff& Mark Johnson, METAPHORS WE LIVE
BY (1980)).
10. Here I draw on the pioneering work John Searle, SPEECH ACTS: AN
ESSAY IN THE PHILOSOPHY OF LANGUAGE (1969).
11. Because I am writing for an audience that is unfamiliar both for me and
with me, I will frequently reference previous texts that develop more fulsomely,
and with exhaustive bibliographic references, the points raised summarily here.
2007]
ILL UMINA TING LEGAL CHANGE
1117
so, we generally neither distinguish bright desert sunshine from
sunlight filtered through urban smog, nor do we attend whether the
bulb emitting the light is incandescent, halogen, fluorescent, or
even a low energy compact coil.
This said, when questioned, or when it matters to know, we
acknowledge that most of our everyday intuitions about light are
merely convenient operational hypotheses. So, for example, we
know that light comes from manifold sources other than the sun.
We are also aware that what we perceive as light frequently results
from a combination of sources, occasionally not involving sunlight
at all. In addition, we recognize that boundaries between light and
dark are often difficult to trace (say at dawn or dusk, or when
artificial lighting is low). Still again, the quality of light often does
matter, such as when we notice the difference between direct
sunlight and the sun's reflection in moonlight, when we distinguish
between "black light" and the warm glow of an incandescent bulb,
or when we perceive shades of color. Light, for us, is what we
perceive. The more we pay attention to what we perceive, the
more its complexity is revealed.
Law, admittedly, is not of the same epistemic order as light.
Yet its paradigmatic expression in contemporary States, who
derive their official legal systems directly or indirectly from
Roman law, rests on several operational hypotheses quite similar to
those that sustain our quotidian conception of light. Paradoxically,
however, we are much more willing to accept our untutored
understanding of light as a series of working hypotheses (as
opposed to statements of scientific truth) than we are to
acknowledge our "common sense" paradigm of law as equally
hypothetical. Indeed, even though most of us now believe that law
is neither divinely ordained nor a natural necessity, we blithely
assert our simplifying hypotheses as being true by definition.
The key definitional truths in conventional understandings of
Western law may be summarized as follows:
(1) Monism: Law is formal and institutionalized such that a
single legal order has a normative monopoly over a given
geographic territory. There is only one source of light in
any given location.
(2) Centralism: Law is exclusively the product of the
political state. The exclusive source of light is the sun.
(3) Positivism: There can be an ex ante hard criterion for
distinguishing that which is law from that which is not law.
There is a sharp distinction between light and dark.
1LOUISIANA LA W REVIEW
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[Vol. 67
(4) Prescriptivism: Law is about externally-imposed rules
and analogous normative statements. All visible light has
the same quality.12
Together, these four parameters induce a conception of legal
change that can be captured by the expression "law reform."
Changing the form changes the norm. Hence, when a legislature
enacts, amends, or repeals a statute, its action of modifying a legal
text necessarily modifies a substantive legal rule, or so the story
goes.' 3 But does it really?
Consider once again how we apprehend visible light. Our first
intuitions are to immediately translate the perception into a
singular, undifferentiated sensation. For example, we think about
sunlight as being quintessentially white. White is what our brain
processes when our eyes are reacting to the entire span of the
visible spectrum. This unifying neurological processing is a key
part of how we adjust to our physical environment. But the human
intellect also strives to disaggregate holistic sensations.
Perceiving, naming, categorizing, and understanding in broader
synthesis are the procedural steps through which we find comfort
when we encounter the "big blooming buzzing confusion" of our
physical location.' 4 Of course, these are the very same steps by
12. For detailed elaboration of these conventional understandings as seen
from a legal pluralist perspective, see Roderick A. Macdonald, Here, Here,
There . . . and Everywhere: Theorizing Legal Pluralism, Theorizing Jacques
Vanderlinden, in ETUDIER ET ENSEIGNER LE DROIT: HIER, AUJOURD'HUI ET
DEMAIN-ETUDES OFFERTES A JACQUES VANDERLINDEN 381 (N. Kasirer ed.,
2007) [hereinafter Macdonald, Here, There and Everywhere]; Roderick A.
Macdonald, Metaphors of Multiplicity: Civil Society, Regimes and Legal
Pluralism, 15 ARiz. J. INT'L & COMP. L. 69 (1998); Roderick A. Macdonald &
Martha-Marie Kleinhans, What is a Critical Legal Pluralism?, 12 CAN. J.L. &
SOC. 25 (1997); and Roderick A. Macdonald & David Sandomierski, Against
Nomopolies, 57 N. IR. LEG. Q. 610 (2006).
13. Only in the past quarter-century has this "taken for granted" proposition
come under critical theoretical scrutiny. See David Nelken, Towards a
Sociology of Legal Adaptation, in ADAPTING LEGAL CULTURES, supra note 3, at
7; see also BEYOND COMMON KNOWLEDGE: EMPIRICAL APPROACHES TO THE
RULE OF LAW (Erik Jensen & Thomas Heller eds., 2003). Probably because of
the influence of Marxism, the converse proposition-that there can be no change
of the substance of law without a change in its form--has held much less sway
over the legal imagination, even in codified civil law jurisdictions. See Karl
Renner, THE INSTITUTIONS OF PRIVATE LAW AND THEIR SOCIAL FUNCTION
(1949) for a comprehensive discussion originally dating from the early twentieth
century.
14.
William James, SOME PROBLEMS OF PHILOSOPHY 50 (Greenwood Press
1968) (1911).
2007]
ILL UMINA TING LEGAL CHANGE
1119
which we also make manageable the "big blooming buzzing
confusion" of our social lives. As children, one of our first learned
skills is the ability to fractionate-to notice difference. But
sometimes the price we pay for fractionation aimed at overcoming
the confusion of undifferentiated experience is an equally troubling
So, having
confusion of single instances-of particularism.
differentiated, i.e., having found plurality, we then, often
desperately, seek to reconstruct singularity and the certainty we
believe flows from it.
Locatinf the most meaningful frame of analysis is the
challenge.'1 In the physical sciences, we take as given several
such frames, such as the visual, the auditory, the olfactory, the
tactile, and smell, and the physiological mechanisms they imply.
So also in the social world we take certain frames as "given." But,
again paradoxically, while we readily admit to the contingency of
the physical apprehension of our "situatedness," we experience
much more difficulty in acknowledging the contingency of our
social "locatedness"--the way in which we organize categories of
knowledge. For example, in any given time or place, law simply
is. Because of this, we presume that there must be a single,
ultimately knowable answer (however indeterminate or
controversial its content might be when applied to particular
situations) to the questions: "what is the law in Louisiana on samesex marriage, or what is the law in Louisiana on the
' 6 perfection of
security interests in corporeal moveable property?'
1 Nonetheless, there is a plurality not only of sites of law in
modem States-light can arisefrom multiple sources; there is also
a plurality of modes of law-what appears to be white light is the
combination of the multiple colors of the visible spectrum. What
If my reader can succeed in abstracting from all conceptual
interpretation and lapse back into his immediate sensible life at this
very moment, he will find it to be what some one has called a big
blooming buzzing confusion, as free from contradiction in its "muchat-onceness" as it is all alive and evidently there.
Id.
Here I am drawing on the insights of Erving Goffrnan, FRAME
(1974).
16. I purposely use the preposition in, rather than the preposition of in order
to signal that I am talking about a particular place (geography), rather than a
particular normative regime (the law of the political State). Whether there can
even be a single, ultimately knowable answer to the question, "What is the law
of Louisiana on same-sex marriage or on the perfection of security interests in
corporeal moveable property?," is a question that jurists adopting a post-modem
approach would question. For purposes of this article, however, I need not
address this further issue.
15.
ANALYsIS: AN ESSAY ON THE ORGANIZATION OF EXPERIENCE
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0LOUISIANA LAW REVIEW
[Vol. 67
then are the legal colors into which the singular law of any
particular regime can be refracted, or, inversely, what do we call
the legal colors that are comprised within the singular law of any
particular regime? These are questions asked in common law
jurisdictions only by authors of textbooks on analytical
jurisprudence, although they are posed by civil law scholars of all
manner of sophistication through an inquiry into "sources of
law."' 7 The conventional fractal elements of Western legal
traditions are:
(1) Enactments (la loi): Official institutions specify law in
propositional form. Additive or "light" primary colorsred, green, blue-are particular wavelengths that can be
mixed to produce all colors.
(2) Custom (la coatume): Members of a particular social or
political community create norms believed to be obligatory
through reciprocal interaction.
Sociological primary
colors-red, orange, yellow, green, blue, purple-are
culturally determined as expressing what we see in a
rainbow or other prismic refractions.
(3) The common law (la jurisprudence): Official
institutions deciding disputes articulate propositions
through which res judicata is reconceived as stare decisis.
Subtractive or "colorant" primary colors-magenta,
yellow, cyan-are particular substances that reflect the
light of one of these wavelengths and absorb other
wavelengths that can be mixed to produce all colors.
(4) General principles (les principes g~n&aux): All
members of a particular social or political community
attend to unconscious norms that arise in tradition and
aspiration. Psychological primary colors express what we
see in a rainbow or other prismic refractions-red, orange,
yellow, green, blue, purple-plus the achromatic pair,
black and white.
Yet contemporary conceptions of law reform invariably rest on
the assumption that legislation is the primary (if not exclusive)
vehicle of legal change. Only law makers (le lkgislateur) can remake law (la legislation). Numerous doctrines (dare one say
fictions) sustain this belief, including the doctrines that state that:
courts do not make the common law (only discover it); custom is
17.
On common law perspectives, see Carlton Kemp Allen, LAW IN THE
(Clarendon Press 1964) (1957). For a leading contemporary civil law
treatment of sources of law, see Jacques Ghestin & Gilles Goubeaux, TRAITt DU
DROIT CIVIL: INTRODUCTION GtNtRALE (L.G.D.J. 2005) (1980).
MAKING
2007]
ILL UMINA TING LEGAL CHANGE
1121
not really law until recognized by a court or a legislature (at which
point it is transformed into an institutionalized form of law and is
no longer normative in its own right); and that general principles
are immutable expressions of the logic of the political communit
and, short of revolution, do not of themselves evolve or change.
Are these doctrines sustainable?
The burden of this article is to deploy the hypothesis of legal
pluralism to provide an alternative account of legal change in
contemporary official normative regimes, whether domestic or
transnational. The argument proceeds in two steps.
First, I argue that the plurality of modes of law within any
system requires us to adopt a theory of legal change that sees these
modes of law not as pieces of a single legal order, but as each
constituting a discrete normative regime. Crudely put, this means
much law reform in modern States produces no substantive
normative change; conversely, it means that that much substantive
normative change occurs without any law reform. Legal pluralism
invites us to notice that, especially in multi-jurisdictional and
international settings of legal change, plural law re-substance may
well result from unitary law reform.
Second, I argue that the plurality of sites of law within any
psycho-social-geographic space requires us to adopt a theory of
legal change that does not see these sites of law as human artifacts
that are separate from the world upon which law is meant to
operate. Crudely put, this means that much law reform is based on
the erroneous presumption that legal subjects are simply entities
that law can apprehend, constitute, remake, or deny; conversely, it
means that substantive legal change is based on the correct
assumption that it is legal subjects who apprehend, constitute,
remake, and deny law. Legal pluralism invites us to notice that,
even in apparently uni-jurisdictional and national settings of legal
change, it is possible to achieve unitary law re-substance through
plural law reform.
18. See Roderick A. Macdonald, ReCommissioning Law Reform, 35 ALTA.
L. REv. 831 (1997).
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I. THE FORM OF LEGAL CHANGE: ADDITIVE PRIMARIES-SEEING
SAME-SEX MARRIAGE 19
It is quite remarkable that we should even think ourselves
capable of talking about law as a singular phenomenon at all. Very
often we attend only to the particular form-a constitution, a
statute, for example-in which discrete legal rules are expressed.
But like visible light, the total normative realm that we experience
is additive. It comprises several distinct but typically overlapping
normative forms. In light, the response curves of the three
different color receptors of the human eye optimize three additive
primary colors, red, green, and blue, for the production of the
largest range of discernible colors. For example, we all know that
mixing green and red produces shades of orange and yellow;
mixing green and blue produces shades of cyan; and mixing blue
and red produces shades of magenta and purple.
yellow
yAl)
These spectral colors are themselves not defined scientifically
by any specific qualitative features. They are, rather, differentiated
quantitatively by their wavelengths.
Nonetheless, how we
19. The concepts of an additive color system and additive primaries
presuppose that light is projected from a source onto a surface. Additive
primaries are those colors that, when projected upon each other in different
combinations and intensities, will produce all colors of the visible spectrum, and
when equally projected at high intensity will produce white light. The additive
primaries are green, blue, and red, and not the familiar red, blue, and yellow
pigments associated with dyes and paints. I evoke the notion of "seeing" to
suggest that the disaggregation of light enables us to attend to our differentiated
ocular capacity, and to reconstruct the apparent unity of white light from its
primary components. Likewise, disaggregating sources of law enables us to see
how these different formal sources can be recombined into a pluralistic
normative order.
2007]
ILL UMINA TING LEGAL CHANGE
1123
apprehend and name these colors is conditioned in part by biology,
notably the color receptors of the eye (the given-donne) and in
part by the reconstructive activity of the brain, itself significantly
shaped by culture and language (the constructed--construit). So,
for example, while both Japanese and English speakers have
similar ocular biology, it is nonetheless the case that the Japanese
language has a single term that covers both blue and green. The
reverse is true as well. The English language sometimes splits
hues into distinct colors, e.g., red and pink, orange and brown, yet
sometimes it does not, e.g., light blue and dark blue, light green
and dark green. But other languages, Russian for example,
actually give two different color names to what the English
language differentiates simply with an adjective: light green and
dark green.
So too the donna and the construit figure in how we see "sources
of law." We do apparently have shared given understandings of the
primary sources of law in Western European derived legal
systems. z At the same time, we also have cultural understandings
of how primary those sources are and what phenomena may be
grouped together as particular instantiations of each normative form.
To illustrate the point, let me begin with a homely example. 2 ' A
child seeking permission from his or her parents to stay out past a
normal bed-time in order to "trick or treat" on Halloween night
recites an array of normative claims. Most frequent are: "Everyone
else is allowed to"; "Last year you let her (presumably an older
sister) stay out later"; "You said that if I was good and did well at
school I could have more privileges." Then the bargaining gets
more intense: "I'll go to bed early tomorrow night"; "I'll share my
candy with you, and won't ask for money to buy more." Yet the
pleas do not stop there. They move on to: "I bet you were allowed
to stay out when you were young"; "I'll be safe because I'll stick
with my friends"; "There is no law that puts a curfew on trick-ortreating"; "All the books on being a good parent say you should be
flexible about bed-times and other limitations." And, of course,
20. On the nature of a "legal tradition" and the shared commitments of
Western European law, see generally H. Patrick Glenn, LEGAL TRADITIONS OF
THE WORLD (Oxford Univ. Press 2004) (2000).
21. This example is drawn from Roderick A. Macdonald, LESSONS OF
EVERYDAY LAW 83 (2002). For a similar canvassing ofjustificatory arguments,
see Jeremy Paul, A Bedtime Story, 74 VA. L. REV. 915 (1988). The illustration
given intimates the continuity of legal and everyday life, on which topic, see
Daniel Jutras, The Legal Dimensions of Everyday Life, 16 CAN. J.L. & Soc. 45
(2001). This theme is explicitly taken up in Part II. For the moment, I wish to
elaborate only upon the multiplicity of normative forms within official legal
orders.
1124
4LOUISIANA LAW REVIEW
[Vol. 67
when all else fails, the claim is simply: "It's not fair! You're being
unreasonable and mean!"
Most often people think of arguments justifying a particular
course of action or outcome as constituting official legal rules.
Legal rules are commands enacted by the State, telling them what to
do. Lawyers, judges, and legal theorists, by contrast, conceive legal
rules, in a manner similar to pleading children, as exclusionary
reasons for action.22 For them, the question of sources of law is one
of determining why certain types of reasons are deemed to count as
law, and others not.
Now imagine how to categorize and catalogue the arguments
made by children on Halloween as different types of reasons for
action. The "everyone else" argument is an appeal to community
customs, practices, and usages. The "last year you let her" argument
is nothing more than citing a precedent. The "you said that if I was
good" argument rests on the idea of enforcing a prior promise, or an
agreement. The "I'll go to bed early" argument is an invitation to
negotiate. And the offer to "share my candy" is an economic
argument that shows a willingness to arrive at a win-win agreement.
The "you were allowed to stay out late when you were young" plea
is an appeal to tradition. The "I'll be safe" argument demonstrates
some long-range concern about consequences. To say "there is no
municipal curfew" is like pointing to a statute, or its absence. To
make reference to "all the books" evokes a reliance on expert
knowledge. And complaining that "it's not fair" is a direct attempt
to invoke a standard of justice, whatever that standard may be.
Depending on the proclivities of the theorist, between two
(legislation and custom) and five (legislation, custom, precedent,
doctrine, and supereminent principles) of these ten types of
arguments are usually held to count as sources of law. 23 Yet in any
attempt to convince a decision-maker that they are woven together
with all the other kinds of arguments is a single effort at advocacy.
There is no Archimedean point for deciding where rules stop and
where arguments about how these rules should be interpreted and
applied begin. This suggests why, in every situation, an easy case is
one in which all (or most) of the relevant, culturally weighted,
22. Here I am adopting the language and thesis of Joseph Raz, THE
AUTHORITY OF LAW (1977).
23. Compare Jean Carbonnier, DROIT CIVIL: INTRODUCTION GtNtRALE
(L.G.D.J. 2000) (1955) (listing legislation and custom as primary sources and
precedent and cases as secondary sources), with Ren6 David, FRENCH LAW (La.
State Univ. Press 1975) (1972) (listing all five as sources). Compare also
Patrick Fitzgerald, SALMOND ON JURISPRUDENCE (Sweet & Maxwell 1966)
(1902) (listing four), with Thomas Holland, JURISPRUDENCE (1910) (listing but
two).
2007]
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normative arguments point in the same direction, and a hard case is
one in which they do not.
Once we understand law not as an undifferentiated whole, but
rather as the result of a subtle and varying interplay of forms of
belief, behavior, and argument, we can easily imagine the shades
within which the total normative picture is presented. That is, just
as certain physical features of the eye enable us to discern primary
hues and differentiate them from secondary hues, so too it may be
that we have come to postulate certain classically identified forms
of normativity as, in some measure, primary. To attend to law and
to conceive of law reform as involving nothing but legislation and
custom is, in other words, no different from (against all evidence)
attending to light as involving nothing but green and blue.
Moreover, just as there are secondary hues, we can imagine
secondary forms of normativity occupying similar intellectual
space. Hence, we can locate contract as a form of law lying on the
normative frontier of enactment and custom, just as yellow lies on
the spectral frontier of green and red. Likewise, we can place an
arbitration award in a final offer selection process on the boundary
of legislation and common law, just as cyan lies between green and
blue. And, we can conceive of appeals to unofficial authority, like
doctrine, occupying the normative ground between custom and
common law, just as mixing red and blue produces magenta.
Conventional opinion in most Western legal systems today holds
that there are three primary additive normative forms, or the
conceptual forms from which all others can be made: legislation,
custom, and common law arising from judicial decisions.
Legislation and custom have the property of being self-evidently
normative. Legislation and common law have the property of
arising in an institutional setting, and custom and the common law
have the property of being non-canonical in expression. In
combination (and in each of their normative hues), they point to
the supereminent principles characteristic of any particular legal
tradition.24
In the remainder of this Part, I shall assess the specific
normative character of these primary forms, arguing that each is an
independent source of normativity and that no one is necessarily
subservient or superior to another. To the extent we conceive such
subservience, we are simply unreflectively accepting the current
cultural construction of law in Western legal systems, and, as a
24. For a slightly different elaboration of this taxonomy, see Roderick A.
Macdonald, Les Vielles Gardes, in LE DROIT SOLuBLE 233 (1996), and
Roderick A. Macdonald, Vers la Reconnaissance d'une Nornativitg Implicite et
Inf rentielle, in SOCIOLOGIE ET SOClETES 38 (1986).
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6LOUISIANA LA W REVIEW
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consequence, blinding ourselves to the distinctive manner in which
other legal systems may conceive their inter-relationship.
The main themes of this Part are developed by examining the
manner in which Western States have sought to modify their official
legal regimes to address the diversity of high-affect adult
relationships. 25 First, I argue that it is important to disaggregate the
different normative forms in order to better see what kinds of claims
those promoting legal change are advancing. Second, I claim that
each of these normative forms is not just a form of law, but is itself a
legal regime. Third, I assert that the different normative forms do
not exist in a pure state but are interpenetrated.
26
A. Legislation-Statute,Enactment. Green
For the past two centuries, a particular form of normativity has
captured the attention of both jurists and citizens in Western legal
systems: the legislative enactment. By legislative enactment, I mean
to signal a broad range of artifacts that comprise what we hold to be
the central case of law, such as treaties, conventions, constitutions
codes, statutes, regulations, by-laws, binding directives, etc.21
Enactments have two external (or formal) properties: (1) they are
consciously made by an institutional process; and (2) they are
typically written in canonical language. These properties give
meaning to the expression law reform. But enactments also have
one internal (or substantive) property: they are normative. 28 Much
of the confusion about what the idea of an enactment implies lies in
the failure to inquire into this second, substantive property. What
does it mean to say that legislation is normative?
25. A systematic treatment of approaches in Canada is set out in Law
Commission of Canada, Beyond Conjugality(2002).
26. Today the human eye has greatest sensitivity to hues that fall within the
green range under normal lighting, notably wavelengths around 550 nanometers.
Similarly, in Western legal systems today most people have greatest sensitivity
to normative artifacts that present themselves in the form of legislation.
27. The specific institutional source of enactments is immaterial. Some are
brought into force through the consent of an entire population, such as a
constitution, for example. Most are the product of an act of will of a
deliberative body, i.e., statutes, delegated legislation, regulations, by-laws, and
so on. A few are the product of bilateral or multilateral negotiation, i.e., treaties
and conventions. For a detailed elaboration, see Roderick A. Macdonald,
Legislation & Governance, in REDISCOVERING FULLER: ESSAYS ON IMPLICIT
LAW AND INSTITUTIONAL DESIGN 279 (1999).
28. It is important to be clear about the claim being made. To be a written,
institutional product is a necessary, but not sufficient, condition for an
enactment. A legislative instrument that is merely declaratory, say of the state
flag, bird, or motto, is not an enactment. In other words, I exclude from this
discussion every legislative product that is not normative.
2007]
ILL UMINA TING LEGAL CHANGE
1127
Legislation may, like assembly instructions for a child's toy or a
recipe for a souffl6, provide suggestions about a structure for
apprehending a task and a method for pursuing a purpose. It may
even, like a list of New Year's resolutions, the mass, or the Seder,
offer us a ritual to reflect upon our duties to ourselves and others.
But nothing about legislation, instructions, recipes, or ritual, in
themselves, directly controls behavior. To the extent we decide to
accept their counsel, words arranged as expressions of legal rules
certainly influence human conduct--they may change the way we
talk, the way we organize our modes of living, and the way we
justify our actions.29
Consider the various ways in which legislatures may attempt to
bring about substantive legal change by deploying an enactment to
change the form in which a particular legal rule is expressed. In the
most obvious instance, this involves an enactment that repeals,
amends, or replaces the canonical words of some other enactment,
such as, paradigmatically, a statute explicitly addressing some
other statute as when the Parliament of Canada enacted the
Modernization of Benefits Act 30 to permit same-sex couples to
receive the same benefits as unmarried opposite-sex couples. But
sometimes legislatures deploy enactments to repeal, amend, or
replace legal rules that have never been given an explicit canonical
formulation, paradigmatically, a statute explicitly addressing a
customary rule as when the government of Canada amended the
Marriage Act 3 1 to permit same-sex marriage. And even when
enactments purport merely to restate a common law rule, the very
act of rendering a precedent into a canonical formulation will
modify it, as when, in the Modernization of Benefits Act, the
Parliament of Canada provided that the statute did not affect the
common law definition of marriage, which it then specified.32
29.
The idea is nicely developed in Jean Carbonnier, FLEXIBLE DROrr: PoUR
UNE SOClOLOGIE Du DRorr DANS RIGUEUR 152 (L.G.D.J. 1995) (1979).
30. Modernization of Benefits and Obligations Act, 2000, S.C., ch. 12
(Can.). This statute was enacted as a consequence of the decision of the
Supreme Court of Canada in M v. H., [1999] 2 S.C.R. 3 (Can.). Given the
import of the decision of the Supreme Court, however, provinces were also
obliged to enact similar legislation. See, e.g., An Act to Amend Certain Statutes
Because of the Supreme Court of Canada Decision in M v. H., 1999, S.O., ch. 6
(Ont.).
31. Civil Marriage Act, 2005, S.C., ch. 33 (Can.).
32. Section 1.1 of the statute explicitly provides that "[f]or greater certainty,
the amendments made by this Act do not affect the meaning of the word
'marriage,' that is, the lawful union of one man and one woman to the exclusion
of all others." Modernization of Benefits and Obligations Act, 2000, S.C., ch.
12, § 1.1 (Can.). In so doing, the Parliament of Canada legislatively codified,
for the first time, the common law rule that only opposite-sex couples could
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These diverse legislative actions may be evaluated according to
their objectives (substance), and according to the techniques (form)
deployed to achieve these objectives. Of course, substance and
form exist in a relationship of interdependence: the choices a
legislature makes with respect to substantive goals being pursued
will normally bear on the kinds of techniques it uses, and vice
versa. The legislative ukase is never unmediated and its form and
substance is necessarily shaped by the structural features of the
instrument through which it is enunciated.33
The objective of many contemporary enactments is not just to
reflect a new social reality. Rather, it is to create a new reality-to
preemptively enact changes to a system in order to change
behavior within that system. 34 Conversely, sometimes legislative
amendments are primarily reactive. In such cases, legislatures
enact amendments meant to reflect changes in society or in other
legal artifacts.3 5 Finally, although a surprising number of
legislative amendments are simply technical, interpretive,
marry. Even in the 1866 Civil Code of Lower Canada, article 115 did not
expressly provide that only a man and a woman could marry, although the point
was implicit. Article 115 stated: "A man cannot contract marriage before the
full age of fourteen years, nor a woman before the full age of twelve years."
CODE CIV. OF LOWER CAN. art. 115 (1866).
33. For an elaboration in contemporary context, see Hoi Kong, Changing
Codes and ChangingConstitutions, 46 LES CAHIERS DE DROIT 629 (2005). The
observation is also true across time. The early English statute differed radically
in form, content, and purpose from the archetypal nineteenth century statute.
See Donald Manderson, Statuta v. Acts: Interpretation,Music and Early English
Legislation, 7 YALE J.L. & HuMAN. 317 (1995). For a review of the evolution
of the form of legislation from 1800 through 2000, see Roderick A. Macdonald,
The Fridge-DoorStatute, 47 MCGILL L.J. 11 (2001).
34. Examples abound. Sometimes legislatures alter several statutes in light
of a single policy objective. Sometimes they will repeal a particular provision or
statute to produce a change in practice. Sometimes they will amend a rule
because the current law shapes an unsettled framework of social practices,
typically with regard to family relationships, in a manner at odds with the
legislature's preferences. And, sometimes they modify or enact a legislative rule
in order to regulate or to establish commercial practices.
35. Again, examples are abundant. Sometimes legislatures change a rule to
reflect an already crystallized change in social beliefs and practices. Sometimes
the modification recognizes a change in perception about which institutional
structures are legitimate. Sometimes legislative action is meant as a response to
a judicial decision that causes confusion. Occasionally, and most frequently in
federal systems, a statute is amended in order to bring it into line with other
statutory changes. And frequently, legislation is meant to respond to discrete
problems in a particular regulatory field rather than reflecting a general shift in
social mores.
2007]
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ILL UMINA TING LEGAL CHANGE
1129
or cosmetic, they are often loaded with symbolic
freight.
Of course, legislatures can also deploy enactments to change the
forms of law implicitly. When the Parliament of Canada enacted the
Modernization of Benefits Act, it did so to explicitly amend several
hundred federal statutes. By contrast, when it amended the
Marriage Act, it made no consequential amendment to the same
several hundred statutes that deployed the word "marriage" in
instances as diverse as income tax deductions, immigration
entitlement, conflicts of interest, and the admissibility of evidence.37
What is more, this statute implicitly amended relevant parts of the
entire corpus of provincial law dealing with, inter alia, family
courts, domestic contracts, pension and insurance beneficiaries, and
adoption.
Most significantly, however, the symbolic effect of the manner
in which the amendment to the Marriage Act was justified, to rectify
the constitutionally impermissible unequal treatment of same-sex
couples, immediately called into question other exclusions on the
capacity to marry. If gender is no longer a relevant denominator,
why should number continue to be? Might polygamy and polyandry
also follow? What also of the incest prohibition? Why should
mothers and daughters who have lived together in a relationship of
interdependence not also profit from the new status? Or similarly
situated siblings?
In the Canadian Parliament's naYve belief that it could simply
enact legislation to deal with the capacity of same-sex couples to
marry without accounting for collateral consequences within its
own legislative powers or within the legislative competence of
provinces, it lost sight of the instrumental impact of enactments on
other forms of law. And in the manner by which it justified its
statutes, it demonstrated that it was neither attentive to, nor
probably even aware of, the symbolic dimension of enactmentshow they color the meaning of other norms that lie beyond the
reach of express legislative intention and action. A deeply diverse
substantive law is the price of the Canadian Parliament's failure to
recognize that
38 enactments are not simply a compendium of express
commands.
36. Legislative action of this sort ranges from altering a title or a heading or
changing terminology simply because it is symbolically charged to statutory
amendment for purely stylistic reasons.
37. For discussion of these impacts, see Law Commission of Canada,
Discussion Paper: Close PersonalRelationships Between Adults (2000).
38. See Jean-Etienne-Marie Portalis, Discours Pr~liminaire,in PROJET DE
CODE CIVIL 463 (P.A. Fenet ed., 1827), for the clearest statement of this idea of
an enactment, penned in relation to a code. "It is the function of an enactment to
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39
B. Custom-Practice,Interaction:Blue
Non-institutional and non-canonical forms of law can be equally
potent and equally problematic in effecting substantive legal change.
In other words, just as an enactment may change the form of another
enactment, a common law rule, or a customary rule, with or without
changing its substance, so too a set of practices may change the form
of a legal rule, with or without changing its substance. Even when
the object of the legal change is a particular legislative text, the onthe-ground activity through which change is pursued can take
diverse forms, deploy different techniques, and originate in diverse
sites. The forms and agencies of legal change, even in relation to
the lex non scripta, are irreducibly plural.
Practice may effect legal change in two complementary
ways--directly and by ricochet. First, custom, usage, and practice
are normative in their own right and will change over time. In this
sense we can analogize the substantive change as one involving
changing hues of blue. Of course, these changing hues are often
the consequence of the influence of other primary colors. Blue
becomes darker and shades into magenta under the influence of
red, and becomes lighter shading into cyan under the influence of
green. So too changes to practice may result from the implicit
Thus, even when an
influence of other normative forms.
enactment does not expressly purport to modify, repeal, or restate a
practice, it may nonetheless do so. 40 Likewise, even when a
judicial decision does not purport to apply, recast, or overrule a
practice, it can produce significant behavioral change. Finally,
practices themselves can be mutually constructive even when not
immediately intended to have generalized effect. Practices are
situated with regimes of activity, such as in the family, the
establish, in large terms, the general maxims of the law, to frame principles rich
in implications. .. it is for the judge and others learned in the law, imbued with
its general spirit." Id.
39. I have associated custom with the color blue because I implicitly want
to suggest the continuity of legal and social life, and blue is the primary color
that moves closest to the audible range of wave motion, thereby suggesting the
continuity of sensory experience. See THE VARIETIES OF SENSORY EXPERIENCE:
A SOURCEBOOK IN THE ANTHROPOLOGY OF THE SENSES (David Howes ed.,
1991).
40. Here is a recent example. When the City of Montreal passed a by-law
to prohibit smoking even in bars and taverns, patterns of drinking changed.
Women smokers, who were obliged to go outside to smoke, drank more quickly
to avoid exposing their half-finished drink to tampering. Similarly, men no
longer checked their coats because they concluded that it was too much trouble
to retrieve a winter overcoat from a coat-check each time one wished to smoke.
2007]
ILL UMINA TING LEGAL CHANGE
1131
neighborhood, the workplace, the marketplace, and so on. For this
reason, these practices will spill over intointeract
other social
settings
with others."'
where those engaged in the situated practice
Conversely, and secondly, customs, usages, and practices
effect legal change through their influence on other forms of law.
Just as blue changes hue under the influence of green and red,
green and red will change hue under the influence of blue. The
means by which institutional artifacts of law can be modified by
practices without explicit amendment of their language is typically
implicit. By implicit law I do not mean just the implicit law of the
State legal order that sustains and nourishes the legislative and
judicial processes. Nor do I only mean the unenacted general
principles, custom, and usages that may be from time to time
recognized by courts. Rather, I am referring to the normativity
flowing from the reciprocal adjustment of expectations arising out
of human interaction in the myriad social locations where this
interaction occurs, quite independently of whether any official
legal institution picks it up, and of whether any such institution
even acknowledges its existence.42
Such a refocusing would have jurists inquire into how citizens
actually construct the living law that the official legal order by
definition effaces, especially where the official legal order is
fundamentally reliant on legislation. The constructive endeavors I
have in mind take place every day in numerous sites and through
numerous practices. The living law attaches to the official legal
order through constructive endeavors that take place every day in
numerous sites and through numerous practices, some of which
attach themselves as appendices to an existing text, some of which
ultimately generate their own written deposits, and some of which
remain tacit. The multiple normative outputs negotiated in these
diverse locations are more than social practices. They are the
reflection of discrete, yet interpenetrated, legal regimes. To
41. Illustrations of the point may be found, in particular, in the various studies
of micro-legal systems undertaken by Michael Reisman. See, e.g., Michael
Reisman, Rapping and Talking to the Boss: The MicrolegalSystem of Two People
Talking, in CONFLICT AND INTEGRATION: COMPARATIVE LAW IN THE WORLD
TODAY 61 (1988); Michael Reisman, Lining Up: The Microlegal System of
Queues, 54 U. CIN. L. REv. 417; Michael Reisman, Looking, Staringand Glaring.
MicrolegalSystems and Public Order, 12 DENv. J. INT'L L. & POL'Y 165 (1983).
42. In this I take my cue from Lon Fuller. See Lon L. Fuller, Human
Interaction and the Law, 14 AM. J. JuRis. 3 (1969).
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borrow a figure from the civil law, they can be conceived of as
implicit civil codes.43
The rationale for characterizing these regimes of practice as
implicit civil codes flows from the theory of a civil code itself. A
civil code can be conceived as a social constitution that presents
the directory principles of the officially recognized private law in
an abstract and canonical form. It is a text purporting to document
the compact between people by which the fundamental terms of
civil society within a given political community are established. 4
This can also be said about the tacit, informal, unofficial regimes
of legal order arising from diverse sites of human interaction.
Whatever their relationship to an official text, they are at the
normative foundations of both inexplicit customs and the more
explicit practices, such as contracts, exchanges of letters, and wills,
that structure and reflect the diverse and complex normative lives
that we each live. 5
To speculate on the number, scope, and import of these
multiple implicit civil codes is, of course, to necessarily recognize
the limited role that the explicit artifacts of the political order, like
civil codes, play in shaping normativity. However much any
legislative instrument or an entire official normative system comes
to achieve an iconic status as a symbolic point of reference for
these other implicit normative regimes, it never constrains human
invention. 46 The inability of the Parliament of Canada to imagine
that the justification for the legal recognition of a civil status such
as marriage today has little to do with conjugality as such, and
43. I have developed these points at length in Roderick A. Macdonald,
Regards sur les Rapports JuridiquesInformels entre Langues et Droit, 3 REV. DE
LA COMMON L. EN FRANQ2AIS 137 (2000).
44. This idea is carefully elaborated in Jean Carbonnier, Le Code Civil, in
LES LIEUx DE MEMOME, 2 LA NATION (Pierre Nora ed., 1986). See also John
E.C. Brierley et al., QUEBEC CIvIL LAW 33-73 (1993).
45. The symbolic framework of official law permeates all the normative
lives we live. This is true not only among the initiates, but among the
population at large. LaFontaine's Fables speak to both society and law in
France in the same manner that Winnie the Pooh offers cautionary tales of law
and life in England. A civil code or other legislative text becomes part of a
society's normative baggage even if its explicit rules are often trumped by the
implicit normativity of other competing legal regimes. See Shauna Van Praagh,
Adolescence, Autonomy and Harry Potter: The Child as Decision-Maker, 1
INT'L J.L. IN CONTEXT 335 (2005); see also Jutras, supra note 21.
46. Here again, Portalis captures the key point. "A Code, however
complete it may appear, is no sooner finished than a thousand unanticipated
questions arise for adjudication. Its rules, once drafted, remain as written.
Human activity, on the other hand, never stops." Portalis, supra note 38, at xii.
2007]
ILL UMINA TING LEGAL CHANGE
1133
even less to do with reproduction of the species, 47 constrains its
capacity to imagine other relationships and other legal48 institutions
for nurturing high-affect relationships between adults.
Today in Canada, a high percentage of households comprising
more than one person and involving a close personal relationship
of dependence or interdependence do not involve a married
opposite-sex couple.49 Even fewer comprise such a couple living
the religious ideal of an indissoluble first marriage. While a
legislative framework enacted by the State can be a lieu de
rassemblement that offers its users a lexicon through which, and a
model of human interaction against which, to put their diverse
implicit civil codes into practice, it can also be an instrument of
exclusion and oppression that is neither normative nor liberating,
even when reformed in response to felt necessity. The central
issue for understanding legal change resulting from implicit legal
forms within a polity where life circumstances and the vernacular
legal order of citizens is increasingly diverse is to acknowledge
that there can be as many implicit civil codes as people organizing
their lives by reference to them.5°
C. The Common Law-Precedent,Adjudication: Red
1
If the business of legal change involves (at least in part) a
mediation between enactments and custom, in Western legal
traditions at least, it also imagines a mediation between these two
forms and a third-the common law. 52 By common law I mean
47. These two justifications underlay the institution in the mid-nineteenth
century when the Judicature Acts in England assigned authority over matrimonial
causes to the common law courts rather than ecclesiastical courts.
48. See Roderick A. Macdonald, Perspectives on Personal Relationships
(Oct. 21, 1999) (unpublished manuscript prepared for the Conference on
Domestic Partnerships sponsored by the Law Commission of Canada at Queen's
University, on file with author).
49. See the statistics reported in Law Commission of Canada, BEYOND
CONJUGALITY 1-7 (2001) and footnotes to Statistics Canada census data cited
therein.
50. Nicholas Kasirer has developed this point in a discussion of the transsystemic program of legal education at McGill. See Nicholas Kasirer,
Biuralism in Law's Empire and Law's Cosmos, 52 J. LEGAL EDUC. 29 (2002);
Nicholas Kasirer, Legal Education as M~tissage, 78 TUL. L. REv. 481 (2003).
See also Roderick A. Macdonald, European Private Law and the Challenge of
PluralLegal Subjectivities, 9 EURO. LEGACY 55, 55-66 (2004).
51. I have associated the common law with the third additive primary, red,,
in order to signal that beyond the common law are other sensory experiences,
including heat, by which we can reinterpret and re-orient behavior.
52. It is not necessary here to undertake an excursus into the various
meanings of the common law. A comprehensive treatment of the concept of a
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4LOUISIANA LA W REVIEW
[Vol. 67
those rules of law that are generated by the application of human
intellect to the invention or reconstruction of reasons for decision
offered by authoritative decision-makers. 53 Most often, the
expression is used in reference to rules so deduced that find no
immediate grounding in a canonical text or practice. Trivially, one
might say that a common law rule is a rule that is neither statutory
nor customary. The color red has an independent grounding as a
primary color regardless of whether it is projected onto a surface
that may be green or blue.
In other words, the common law is not parasitic upon other
forms of law, which serve as the material from which the decisionmaker constructs the "reasons for decision" that are then
reconstructed in the future as a precedent. Nonetheless, the
difference between the idea of the common law as the selfcontained customary practice of official decision-makers (most
notably, courts) and the idea of judicial decision as a simple
precedent is, at times, subtle. 54 When a court follows, extends,
distinguishes, or overrules a prior decision in relation to the
interpretation of a statute, that court is thereby engaged in an
activity that will later be cited as a precedent. But the precedent is
an interpretational precedent: the formal norm is still to be found in
the enactment, whether a statute, regulation, or code. So also,
when a court purports to act similarly in respect to a customary
norm, it may do one of three things: (1) it may claim that it is
doing no more than giving official expression and recognition to a
legal rule that already exists as a custom; (2) having once already
given such recognition, it may claim that its previous interpretation
of the custom was correct or erroneous, as the case may be; or,
finally, (3) it may acknowledge the correctness of a previous
interpretation, yet find that the custom has changed, for much the
same reasons that an enactment may change-either substantively
or formally.
In neither the case of statutory interpretation nor the
interpretation of a customary rule does the court claim that it is the
author of the norm. Rather, it is an oracle. The green of the statute
common law and its importance for statutory law is provided by H. Patrick
Glenn, ON COMMON LAWS (2005).
53.
For development of this conception, see generally Lon L. Fuller,
ANATOMY OF THE LAW
(1968). See also Melvin Aron Eisenberg, THE NATURE
(1978).
See Jacques Ghestin & Gilles Goubeau,
OF THE COMMON LAW
54.
INTRODUCTION GtNtRALE
TRAFE DE DROIT CIVIL:
(1993) for an elaboration of how this conception of
judicial interpretation can generate a judicial common law even in a codified
civil law tradition.
2007]
ILL UMINA TING LEGAL CHANGE
1135
remains green, although of a different hue, and the blue of custom
remains blue, although again of a different hue. Of course, there
are cases where a judicial interpretation of a statute or practice is
significantly shaped by the common law of the court's own
making. In these cases, there is an interpenetration of normative
forms, such that the judicial interpretation of a statute or custom
becomes a new source of law. For present purposes, we might say
the former are instances of yellow and the latter instances of cyan.
Of course, in addition to the judiciary, there are other official
and unofficial institutional decision-makers whose interpretive
processes and practices contribute to substantive legal change.
These include, for example, administrative agencies, the police and
other public officials, individual lawyers, and citizens, whose
interpretations inform the living law of an enactment or a customary
practice.55 But these types of legal change through interpretation
are, generally speaking, so implicit that they are also subliminal;
not only is the form of law unaltered, but often there is no official
recognition of any substantive legal change.
By contrast,
sometimes these processes and practices do generate official
interpretative change in courts. This most often occurs where the
practice in question is explicitly normative. Here one might signal
doctrinal writing by law professors, briefs and memoranda by
professional associations, lobbying activities by private
56 groups, and
even professional practice through strategic litigation.
In one sense, all interpretation can be understood as simply a
case of the interpreter instantiating through application the
intention of the legislature. However, a different image emerges if
we consider judgments to be normative artifacts that do not simply
derive their legitimacy from an implicit delegation by a legislature
to develop a particular normative field that the legislature chooses
not to regulate explicitly-that is, if we conceive of them as
distinct sites of legal normativity. Interpreters are participants in a
wide-ranging dialogue about the meaning of norms, and they
55. Scholars of administrative law precisely understand the point when they
talk about "agency law" as a separate phenomenon from the law as announced
by courts sitting in judicial review, even when the norm at the source of the
"law" is identical. See Roderick A. Macdonald, On the Administration of
Statutes, 12 QUEEN's L.J. 488 (1987).
56. Consider the following observations of Portalis, supra note 38, at 469:
"In the absence of a specific text on every point, a longstanding, constant and
well-established usage, or an uninterrupted succession of decisions on a
particular point, or a doctrinal opinion or established maxim stands stead of
legislation."
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become active sites of legal change. 57 In this light, the distinction
between legal change effected through interpretation of custom or
legislation and legal change effected through the interpretation of a
precedent is a matter of degree. The common law, that body of
unenacted norms invented by courts under the cover of discovery,
is the substantive law that underlies any particular formal
explication of it in a judgment. In other words, the official
common law is a particular site of custom and practice-the
custom and practice of the primary law-applying organs of the
official regime (courts). Concomitantly, any interpreter of any
normative regime engages in a similar practice and is similarly
influenced by other normative forms appropriate to that regime.
What then is the role of the common law as such in producing
legal change? Not surprisingly, this role is both formal and
substantive, and is both explicit and implicit. Perhaps the most
striking example of the courts deploying the common law to effect
legal change is where they hide what they are doing under the
cover of constitutional review. Occasionally, they extend basic
principles of the common law constitution, such as the rules of
natural justice, to "supply the omission of Parliament" and modify
the operation of statutes. 58 Sometimes they find justification in
implicit constitutional principles. 59 And on rare occasions, they
imagine not only that the common law declares legislation
unconstitutional, whether on federalism grounds or as a result of
the application of substantive bill of rights-type amendments,
but
60
also that the common law will actually erase the text.
When the Supreme Court of Canada first confronted cases in
which claims were made for the recognition of equal status of
same-sex couples, it was constrained by the manner in which the
arguments for legal change were framed. Initially, the cases were
cast in terms of the discriminatory effect of legislation setting out
the support obligations due between common law spouses at the
57. Gerald J. Postema, On the Moral Presence of Our Past,36 McGILL L.J.
1153 (1991).
58. I have considered this activity of judicial implication at length in
Roderick A. Macdonald, ProceduralDue Process in Canadian Constitutional
Law: NaturalJustice and FundamentalJustice, 39 U. FLA. L. REv. 217, 230-42
(1987).
59. See Ref. re Remuneration of Judges of Prov. Court of PEI; Ref. re
Independence & Impartiality of Judges of Prov. Court of PEI; Manitoba Prov.
Judges Ass'n v. Manitoba (Min. of Justice), [1998] 1 S.C.R. 3 (Can.).
60. To take a dramatic example from Canada, in Reference re Manitoba
Language Rights, [1985] 1 S.C.R. 721 (Can.), the Supreme Court not only
pronounced on the validity of Manitoba's legislation since the late nineteenth
century, but implicitly declared that, should such legislation not be retroactively
validated, it would be deemed never to have been enacted.
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termination of the relationship. In M v. H., it was argued that to
permit such claims to be made by unmarried heterosexual couples
while denying recourse to same-sex couples who were in an
analogous domestic situation of unmarried conjugality was
contrary to the equality guarantee of § 15 of the Canadian Charter
of Rights and Freedoms. 1 After having decided the case on that
basis, litigation commenced on the issue of whether the common
law exclusion of same-sex couples from entitlement to marry was
equally unconstitutional. Before the case could be decided, the
government of the day referred a bill to the Court for an advisory
opinion as to whether an enactment permitting same-sex marriage
was unconstitutional.62 In opining as to constitutionality, the Court
never addressed whether the current Marriage Act was itself
unconstitutional. Nor did it opine as to whether some legislative
response short of legalizing same-sex marriage would pass
constitutional muster.
In this saga, one sees how litigants and the Parliament of
Canada instrumentalized the judiciary by assuming that the
common law rule relating to same-sex marriage had exactly the
same normative status as a legislative rule respecting entitlement to
benefits and support obligations. To its discredit, the Supreme
Court of Canada acquiesced in this instrumentalization of its own
normative processes and the trivialization of its own normative
product.
The gravamen of this section is that legal change through
judicial activity can occur in multiple registers, multiple forms, and
multiple processes. Because the forms of normativity in a regime
of law extend beyond enactments and general social customs,
usages, and practices, to also embrace the customs, usages, and
practices of official and unofficial interpreters, legal change
through changes to the expression of interpreter's customs are as
various as the agents engaged in these interactional practices.
Unless the courts protect their own practices, however, the
expropriation of law by legislative enactment will only increase.
61.
62.
[1999] 2 S.C.R. 3 (Can.).
Ref. re Same-Sex Marriage, [2004] 3 S.C.R. 698 (Can.).
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63
D. Tradition-SupereminentPrinciples,Phronesis. White
The visible spectrum comprises a variety of wavelengths that at
their margins fade into infrared and ultraviolet spectra. That is,
colors as we apprehend them are only a part of the electromagnetic
spectrum ranging from very short (gamma rays) to very long (radio
waves). In addition, our sensory apparatus allows us to attend the
non-visible wavelengths through our ears (sound, towards the
shorter end) and tactile sense (heat, towards the longer end). That
is, whatever we see at any given time is a function of what we are
able to see. 64 The presence of green light implies either that
certain wavelengths have been absorbed, or filtered out. All
wavelengths are, in theory, always present. Likewise, all forms of
law are, in theory, always present in any regime. Even if we attend
to only one, the others are impliedly present. Even still, if we
attend to all but one, the missing form is also impliedly present.
All normative regimes, not excepting the official regimes of the
political State, can be understood as comprising white light.
Most frequently, however, we focus on forms of law that have
either an institutional (typically textual) or canonical expression.
These primary forms have just been considered. But together they
and the various secondary hues that arise from their particular
combination are additive to produce white light or a complete
normative regime. What is the intellectual framework within
which these forms are added? It is the non-institutional and noncanonical expression of normativity that we ascribe to the
foundational principles and understandings of any particular legal
regime. That is, this implicit and inferential normativity is at once
the understanding that arises from attending to the components of
the visible spectrum, and the underlying intellectual construction
63. As the diagram intimates, at the conjuncture of the three primary
additive colors, one discerns a hue approaching white-the result of the
projection of the three primaries in fully saturated fashion. When they are
projected at less intensity, the result is varying shades of grey. The association
of white with tradition and supereminent principles is meant to suggest that a
tradition is a complex amalgam of the entire normative typology. In this sense,
a tradition can only be appreciated when all additive primaries are accounted for
in equal intensity.
64. The point is important. While human beings can perceive a range of
colors within the visible spectrum, how they do so is given by the fact that we
have three different color receptors. Three color receptors generate three
additive primary colors. Some species, such as birds, are often tetrachromats
and have four color receptors, permitting them to discern a fourth primary color.
By contrast, most mammals other than primates are dichromats,having only two
types of color receptors and consequently discerning only two primary colors.
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ILL UMINA TING LEGAL CHANGE
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by which the visible spectrum is understood to be part of the larger
electromagnetic spectrum.
These principles are, for the most part, latent in the practices by
which legislatures enact rules, in the everyday practices by which
multiple normative communities express structures of belief and
behaviors, and in practices by which interpreters, such as courts,
interpret rules, whether of the legislature, or a normativity
community, or their own practices. Occasionally, they come to
manifest expression and recognition. So, for example, a legislature
may attempt to enact them through a formula that can be
understood only metaphorically, such as the Rule of Law, good
faith, public policy, reasonableness, due process, equal protection,
the prohibition against cruel and unusual punishment, the best
interests of the child, fiduciary obligations, or unjustified
enrichment. In the same way, members of normative communities
will typically seek to ground their practices in understandings that
transcend both the here and now. Whether the referent be to
tradition, justice, or revelation, the expression can never do more
than point to a symbolic referent. Likewise, interpreters may
explicitly add to the justificatory structure of a decision a reference
to principles that are aspirational in ambition.
While many of these principles sound in constitutional law,
because it is in that context that the need to refer to them censorily
is most keenly felt, they appear through the law and serve as
engines of legal change.65 Many are implied by enactments or
judicial decisions without being reduced to writing. In principle
this is what occurs in every situation of judicial interpretation, as
such usages and doctrines provide the normative link that enables
judges to mediate between competing litigation narratives. When a
court or any other interpreter discovers, announces, or applies such
a principle, it is bringing consciousness to substantive law that has
not previously been made explicit or is providing a continuing
iteration of how a principle expressed symbolically may be
instantiated in particular cases. In either case, the interpretive act
is an act of legal change.
Here then is the true import of implicit and inferential
normativity: it is the engine of tacit legal change. Assumptions
about the socio-economic and political conditions may typically lie
65. On the potential problems raised by recourse to such principles, see Jean
Leclair, Canada's Unfathomable Unwritten Constitutional Principles, 27
QUEEN'S L.J. 389 (2002). For a tentative affirmation of their use, on pluralist
grounds, see J.F. Gaudreault-DesBiens, The CanadianFederal Experiment, Or
Legalism Without Federalism? Toward a Legal Theory of Federalism, in
FEDERALiSMO/FEDERALISM 79 (M. Calvo-Garcia & W. Felstiner eds., 2004).
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unvoiced in the background of formal law reform efforts, but they
inevitably become heard as they interact with the explicitly
expressed features of a given legal order and the everyday law of
citizens. Tacit legal change entails attending to these principles
and conditions and recognizing the ways in which reform measures
may shape and be shaped by them. No one form of law, like no
one primary color, ever really exists in its pure state.
Unitary law reform is the pretension that simply adding more
pure green will accomplish a desired legal change. It aims only at
one of the additive primaries, but no matter how bright the green
is, it will provide an incomplete illumination. Only white lightthe simultaneous projection of all additive primaries-allows us to
see what is "on the ground" clearly. White light is not only the
apparent white light that we need to disaggregate in order to
understand the interplay of various sources (forms) of law, it is
also the goal of the endeavor. Not surprisingly, this particular
expression of pluralistic normativity is the only type of law reform
that will produce substantive legal change.
To understand the phenomenon of light as the additive result of
the differing wavelengths discerned by physical features of the eye
and brain is to conceive of law in any particular intellectual system
not as an undifferentiated whole, but rather as the result of a subtle
and varying interplay of forms of belief and behavior. Just as
ocular biology predisposes human beings to attend to certain
wavelengths that are primary, and just as our language and culture
predispose us to group and to differentiate wavelengths into
particular spectral colors, so too, our inherited occidental legal
traditions predispose us to see certain forms of law as primary, and
so too, our particular language and culture predispose us to group
and differentiate all forms of normativity into particular categories.
This is why an answer to one of the questions posed in the
introduction, "What is the law of Louisiana on same-sex
marriage?," cannot be given without carefully disaggregating the
forms by and through which that normativity is expressed.66
Put slightly differently, if one approaches domestic legal
regimes on the assumption that the key point of analysis is to
imagine law as white light, one will never attend to the way in
66. See Robert Leckey, Family Law as FundamentalPrivate Law, 85 CAN.
B. REV. (forthcoming 2007) (discussing how legislation and constitutional
statutes have relegated other forms of normativity in respect of questions
touching the definition of marriage to the margins).
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ILL UMINA TING LEGAL CHANGE
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which diverse normative forms actually interact. The subtle
relationship of enactment to custom, just like the subtle
relationship between green to blue, will be washed out. Moreover,
even if in theory the undifferentiated understanding we have of
light should embrace the entire visible spectrum, one of the
primaries will dominate, for reasons of biology and culture.
In this Part, I have sought to show that the theorization of the
day-to-day activity of those who think they are engaged in
promoting legal change reflects the dominant theory of law
reform's paradigmatic practice, the haphazard application of
legislative correctives meant to achieve an instrumental purpose.
All of these discrete legislative interventions presuppose an
internal exercise of legal change that takes the basic assumptions
of law as a given-as a ground in which the reforming endeavor
will be rooted. I have argued, conversely, that attending to the
"form" of legal change enables us to see both the equal status and
interpenetration (hues) of different forms (sources) of law. The
first step to understanding law re-substance is to6 7see the normative
image of law re-form with clarity and precision.
II. THE SUBSTANCE OF LEGAL CHANGE: SUBTRACTIVE
68
PRIMARIES-DOING COMMERCIAL LAW REFORM
The internal pluralism of a legal order considered in Part I is
fundamentally a pluralism of modes of law. In conventional legal
theory this plurality of normative forms simply reflects the
different ways in which a system's rules can be expressed in a
manner that will be recognized by a regime's self-defined primary
67. On the power of attending to visibility, see Andrea Brighenti, Visibility:
A Categoryfor the Social Sciences, CURRENT SOCIOLOGY (forthcoming 2007).
68. The concepts of subtractive color systems and subtractive primaries
refer to the pigments found in dyes and paints that absorb only some
wavelengths. The color of a dye is that which is associated with the part of the
visible spectrum that is not absorbed by the dye, i.e., the part of the visible
spectrum that is reflected. For this reason, subtractive primaries are the opposite
of additive primaries. We perceive green not because a light source emits green,
but rather because there is an absence of magenta in the pigmentation of the
object we see. The three subtractive primaries are magenta, cyan, and yellow,
which together absorb the entire visible spectrum, producing black. I use the
notion of "doing" to signal that the absorption of portions of the visible
spectrum light typically is unnoticed because we attend rather to the colors that
are reflected. In a like manner, when we attend focus on the legal order of the
political State, we typically fail to notice all the other competing legal orders in
competition for our loyalty and adherence. When we do not attend to any of
these legal orders, of course, the result is the normative equivalent of black-the
absence of anchorage for producing substantive legal change.
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69
law-applying organs under a "hypothetical rule of recognition.
By contrast, a legal pluralist perspective conceives each of these
forms as a separate normative regime. A legislature generates its
own legal regime, as does a court, an administrative tribunal, or a
social group. What we conventionally call any particular "legal
regime," for example, the law of Louisiana, is a complex
interweaving of interpenetrated normative forms, reconstructed as
a single system. 70 The legal pluralism of contemporary law also
has an external dimension. From the perspective of normative
regimes that are not recognized by a given regime's primary lawapplying organs, internal regime plurality is simply the mechanism
by which legal systems selectively domesticate the exotic. To
recur to the metaphor of color, we might say that plural
normativity results not just from the multiple spectral wavelengths,
the additive primaries, that together comprise visible light, but also
from the several pigments that differentially absorb and reflect
light from multiple sources, the subtractive primaries.
What is most significant in these understandings of subtractive
primaries is that the secondary colors produced by their
combination are the additive primaries previously noted, and vice
versa. The relationship of internal and external legal pluralism is,
in exactly the same way, constituted through symbiotic inversions.
Just as a Aiven legal regime may deconstruct its internal normative
plurality, so too a given normative regime claims primacy by
locating itself over and aainst the plurality of other regimes in the
total normative universe. 2 As with additive primaries, however,
subtractive primaries rarely appear in pure form. For example,
mixing yellow and cyan produces shades of green; mixing cyan
with magenta produces shades of blue; and mixing magenta with
yellow produce shades of red. The particular hue obtained by
mixing subtractive primaries parallels the particular weight of
internormative influence among different legal orders. In a fully
saturated combination, the three subtractive primaries yield black,
just as in a fully saturated normative universe all have equivalent
prescriptive status.
69.
See generally H.L.A. Hart, THE CONCEPT OF LAW 100-23 (Oxford
Clarendon Press 1996) (1961).
70. It was precisely in reaction to this unitary reconstruction that Fuller
came to characterize his legal theory of multiple processes of social ordering as
pluralistic. See Lon L. Fuller, The Law's PrecariousHold on Life, 3 GA. L.
REv. 530 (1969).
71. This being analogous to the single sensory experience of white being
disaggregated by a prism into colors.
72. This being analogous to the particularity of absorptive pigments being
held distinct to prevent the creation of a single sensory experience of black.
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ILL UMINA TING LEGAL CHANGE
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This Part develops four implications of thinking about
normative plurality as akin to subtractive primaries.
Fundamentally, an external pluralist approach rests on the
observation that, however much substantive legal change seems
correlated to the reform of artifacts of the official law of a political
State, there is no necessary causal connection between the two.
Whatever the form of law, i.e., enactment, the common law, or
custom, a change to form need not precipitate substantive legal
change; conversely, whatever the form of law, substantive legal
change may occur even when that form remains unchanged. 73
Together, these observations recall the intellectual moves by
which internormative trajectories between unofficial and official
legal orders are explained in conventional legal theory. In codified
systems, the claim is that the need for ordinary law reform may be
obviated by casting codal prescriptions at a sufficient level of
generality that their meaning can evolve through time. 74 The
nineteenth century civil code was to function not like an ordinary
statute directed to reforming the law, but rather like the historical
common law. Until the utilitarian politics of the late nineteenth
century froze its development, that common law was constantly
evolviig without significant legislative intervention to "work itself
pure.
The relative autonomy of form and substance is a central point
for analyzing pluralistic legal change. 76 It can be elucidated by
thinking through the several possible relationships that can arise
between human action and official law. Consider first action in
conformity with the formal prescriptions of State law. Sometimes
we act in a particular way without awareness that a specific rule of
law requires, counsels, permits, or even advantages the behavior in
question. At other times, we are aware of a statutory rule but act as
we do for our own reasons having little or nothing to do with that
rule. Still yet, we act at times in the manner apparently required by
73. These ideas are explored, although in slightly different terms, by Alan
Watson in his discussion of the "block effect of Roman Law." See Alan
Watson, THE CIVIL LAW TRADITION 14-23 (1985).
74. The most powerful argument of this kind was made 100 years ago by
Marcel Planiol. See Marcel Planiol, L 'Inutilitg d'une Rdvision Ggngrale du
Code Civil, in 2 LE CODE CIVIL, 1804-1904 L1VRE DU CENTENAIRE 953 (1904).
75. The distinction Llewellyn draws between the "formal style" and the
"grand style" in common law judgments remains one of the best expositions of
this idea. See Karl Llewellyn, THE COMMON LAW TRADITION: DECIDING
APPEALS (1960). For the source of this expression, see Omychund v. Barker 26
E.R. 15, 23 (L.R. Ch. 1744) (Eng.).
76. The ideas that follow are extracted from Roderick A. Macdonald & Hoi
Kong, Patchwork Law Reform: Your Idea is Good in Practice, But It Won't
Work in Theory, 44 OSGOODE HALL L.J. 11 (2006).
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the statutory rule out of convenience, because doing so is of no great
consequence to us. Sometimes we consciously elect to act as a rule
prescribes because we consider the rule to be just and appropriate in
the circumstances. Finally, sometimes we choose to follow a rule
that we genuinely believe unjust because of the larger claim that it is
just to obey the rules of the State that aim at justice, even when they
fail, in individual cases, to do so. Only in the last of these cases can
it be said that there is a significant substantive weight attaching to
the formal statutory rule.
Consider next human action not in conformity with the formal
prescriptions of State law. Sometimes we act contrary to a rule of
State law because we are ignorant of it. Sometimes, as in much
regulatory law, we do so unreflectively and carelessly. At other
times, contrary action is grounded simply in opportunistic and selfinterested reasons. Still yet, we at times accept the justice of the rule
as a general proposition but not of its application in the particular
case we are confronting. Finally, sometimes our dissenting behavior
is based on our belief that the rule is unjust in all cases.
This variety of hypotheses about the relationship of human
action to formally announced legal rules reveals the fundamental
truth of official law reform. When a legislature enacts a reforming
statute, or when a court announces a new or modified "common
law rule," the enactment or announcement operates principally in
the symbolic, rather than the instrumental, register. While
modifications that make the formal rule consistent with already
accomplished social change appear to effect an instrumental,
regulative purpose, they do not. Most law reform is about
providing institutional structures through which people can more
effectively coordinate existing behavior. While modifications that
change a formal rule in directions not already taken in social action
also appear to effect an instrumental, regulative purpose, once
again, the proposition is doubtful. The formal
77 law may indeed
propose, but, in the end, human action disposes.
Patterns of legal change in the transnational commercial law
sphere can serve to illustrate the perils of mistaking law reform for
substantive change. Throughout the developing world, legal
change is often conceived as legislative law reform best brought
about by a continuing series of exogenous legal transplants on a
unitary, one-size-fits-all basis.78 The main themes of this Part are
77. See Macdonald, supra note 7.
78. For the importance of contextual sensitivity, compare Daniel Berkowitz
et al., The Transplant Effect, 51 AM. J. COMP. L. 163 (2003), with Daniel
Berkowitz et al., Economic Development, Legality, and the Transplant Effect, 47
EUR. ECON. REv. 165 (2003). The expression "legal transplant" was coined by
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ILL UMINA TING LEGAL CHANGE
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developed by closely examining attempts of regimes of secured
transactions law at modernization, particularly in the post-socialist
economies of central Europe. 79 First, to anticipate the formal law
of a State, or even of a transnational system elaborated by treaty, is
only a part of the relevant normative order. Internal legal
pluralism exists regardless of how the relevant legal order is
defined. Second, the reasons for which people accept the authority
of official rules are as varied as the reasons for which they accept
the authority of unofficial rules. Third, the success of attempts to
effect legal change (re-substancing law) is dependent on a plethora
of factors, only some of which relate to legal form: considerations
relating to legal structures; political decision-making and
institutional infrastructure; economic structure and market
segmentation; and social and professional practices. All, however,
are directly linked to the four central tenets of the legal pluralist
hypothesis: pluralism, not monism; polycentricity, not centralism;
interactionalism, not positivism; and, agency, not prescriptivism.
A. Monism-Effacing Social Facts: Yellow
80
Jurists trained in States with market economies are wont to
proclaim that the reform of secured transactions regimes should be
informed by a few, relatively uncontroversial, core legal principles.
They typically also agree that these principles should apply
whatever the basic character of the legal system already in place,
whether it is the common law, civil law, socialist law, religious
Alan Watson.
See Alan Watson, LEGAL TRANSPLANTS: AN APPROACH TO
COMPARATIVE LAW
(1974). For recent contributions to the debate, see Roger
Cotterell, Is There a Logic of Legal Transplants?, in ADAPTING LEGAL
CULTURES, supra note 3, at 70; Yves Dezalay & Bryant Garth, The Import and
Export of Law and Legal Institutions: International Strategies in National
Palace Wars, in ADAPTING LEGAL CULTURES, supra note 3, at 241; Pierre
Legrand, What Legal Transplants?, in ADAPTING LEGAL CULTURES, supra note
3, at 55; Daniel Nelken, Towards a Sociology of Legal Adaptation, in ADAPTING
LEGAL CULTURES, supra note 3, at 7.
79. For a more elaborate discussion of international secured transactions
reform, see Roderick A. Macdonald, Article Nine Norm Entrepreneurship,43
CAN. Bus. L.J. 240 (2006).
80. I have associated the notion of monism with yellow because it is the
inverse of blue, already chosen to represent non-institutional and non-canonical
forms of law, i.e., custom and practices. In this section, I suggest that the
absorption of the multiple, informal normative regimes into a single system is
the external parallel to the denial of the diversity of custom.
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law, or customary law. 8' In this conclusion, however, law reform
entrepreneurs make a fundamental error. They believe that
because harmonization of secured transactions law is the
substantive result to be achieved, there must be harmonization, if
not identity, in the form of the law to be adopted. This monistic
commitment also drives conventional views of law itself: the
proposition that, because law is formal and institutionalized, a
single legal order must
have a normative monopoly over a given
82
geographic territory.
There are two dimensions in which this preoccupation shows its
insufficiency. First, the diversity of political culture will shape the
form of law and its processes. Second, the diversity of on-theground social facts will shape the substantive norms that govern the
regime. In other words, the criteria and processes by which one
selects the unit of legal analysis are not foreordained. Even leaving
aside the question whether the construction of substantive
normativity should be pragmatic and transactional, there are a range
of registers in which regimes of normativity can be understood.
Most obviously, law can be linked with the atomic political State,
e.g., Louisiana, New York, France, England, Quebec, Ontario. In
such a perspective, all other normative regimes would then be cast
as external.
Alternatively, the law could be linked to the direct historical
cognates, usually confirmed through some notion of reception, of
the atomic political State they privilege. For example, New York
and Ontario have direct historical cognates in the common law of
England, while Louisiana and Quebec have a direct historical
cognate in the civil law of the Ile de France. They would then treat
everything else as external.
Alternatively, some would prefer to link the law with the
indirect cognates of the atomic political State they privilege. New
York and Ontario, for example, have indirect cognates in the
common law of Australia, New Zealand, and India, among others;
Louisiana and Quebec, on the other hand, have indirect cognates in
the civil law of Germany, Italy, and Latin America.
Finally, some would prefer to link the law with the historical
cognates of the atomic political State they privilege. New York and
Ontario, for example, have indirect historical cognates in medieval
81.
See generally ADAPTING LEGAL CULTURES, supra note 3; DROIT
QUEBECOIS ET DROIT FRAN;AIS, supra note 3; LA CIRCULATION DU MODELE
JURIDIQUE FRAN;AIS, supra note 3; World Bank, Principles and Guidelines,
supra note 5.
82. See Roderick A. Macdonald, Metaphors of Multiplicity: Civil Society,
Regimes and Legal Pluralism, 15 ARIZ. J. INT'L & COMP. L. 69 (1998)
(discussing legal pluralism as a method to overcome monism).
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ILL UMNA TING LEGAL CHANGE
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English law and in twelfth century Roman and Canon law.
Louisiana and Quebec, on the other hand, have indirect historical
cognates in medieval Carolingian law and twelfth century Roman
and Canon law.
Not one of these is a priori superior to any of the others as a
means to organize a formal doctrinal assemblage that one would call
a law reform statute. Superiority flows from decisions taken as to
which aspects of the substantive normative regime one chooses to
privilege, and how well one can accommodate the full panoply of
substantive legal change objectives within a regime created on one
or the other assumption. The aspiration and practice of legal
change being sought in pluralizing form, content, and process is to
reconstruct the social relations that are constitutive of all types of
legal systems.
To illustrate this point, imagine the following secured
transactions: (1) the financing of snowmobiles in Rimouski,
Quebec; in Kapuskasing, Ontario; in Grenoble, France; in Portillo,
Chile; in Aviemore, Scotland; and in Thredbo, Australia; and (2)
the financing of automobiles in Montreal, Quebec; Toronto,
Ontario; Paris, France; London, England; Santiago, Chile; and
Sydney, Australia. In what conceptions of law would we say, for
purposes of legal analysis, that the closest normative affinities are
Montreal and Rimouski (and more remotely Paris, Grenoble,
Santiago, and Portillo) on the one hand, and Toronto and
Kapuskasing (and more remotely London, Aviemore, Sydney, and
Thredbo) on the other? In what conceptions of law would we find
the primary pairs to be Rimouski and Kapuskasing (and more
remotely Grenoble, Aviemore, Portillo, and Thredbo) on the one
hand, and Montreal and Toronto (and more remotely Paris,
London, Santiago, and Sydney) on the other? In what conceptions
of law would we conceive the primary groupings to be Rimouski
and Portillo (and more remotely Montreal and Santiago) and
Kapuskasing and Thredbo (and more remotely Toronto and
Sydney) on the one hand, and Grenoble and Aviemore (and more
remotely London and Paris) on the other?
Legal pluralism theory rejects the facile conclusion that the
answer given to the first question is necessarily the best. Indeed,
legal pluralism theory seeks to understand the conditions under
which each one of these organizational frames might be most
relevant to the solution of any particular problem, and at the same
time to imagine what solutions might
83 look like if alternative
organizational frames were adopted. For present purposes, three
83.
For possible answers to these questions, see Roderick A. Macdonald, In
Praise of the Hypothecary Charge, DERECHO COMERCIAL INTERNATIONAL
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8LOUISIANA LAW REVIEW
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frameworks may be identified: political culture, economic context,
and social practices.
The most important consideration in any international endeavor
to effect legal change through legal transplants is that the proposals
respect the political culture of the country in question. This means,
obviously, attending to institutional structure and practices, but it
also means, at a more mundane level, considering the impact of
basic public policy choices. In North America, for example, the
widespread use of private social insurance programs means that a
secured transactions regime can be designed to favor lenders to the
exclusion of the State (or its agencies). But in many countries, it is
only by maintaining a priority entitlement in bankruptcy that these
programs can avoid insolvency themselves. One cannot assume
that all States will locate responsibility for providing basic social
services on the same side of the public-private divide. Since the
goal is to provide for the most efficient, low-cost regime of secured
lending possible within the framework of the political choices
made by individual States about the organization of their
economies, the regime has to be designed to permit States to use
non-consensual priorities to achieve social policies.
A secured transactions regime is not a free-standing field of
legal regulation insulated from economic forces. It must be
adapted to market practices of a jurisdiction. In some countries,
for example, there is only a rudimentary trading economy because,
whether in the agricultural, manufacturing, or light-industrial sector,
the interpersonal confidence that makes the market for credit
possible is absent. Therefore, simply importing legal regimes from
one country to another without attending to underlying
assumptions about credit granting is perilous. Again, legal regimes
such as those found in North America, which presuppose open
competition for credit need to be adjusted for countries where a
small number of institutions (sometime the national bank owned
by the State) have a defacto or dejure credit monopoly.
Finally, simply because a newly enacted secured transactions
regime is generally coherent with the official legal regime into which
it is being projected is no guarantee that it will be successful. One
(forthcoming 2007). In the first pairing, the
conceptual aggregator is the abstract notion of a legal tradition, e.g., civil law,
common law, etc. In the second, the conceptual aggregator is transaction-type
and geography, e.g., financing snowmobiles in rural communities, financing
automobiles in cities. In the third, it is socio-political culture, e.g., the sociopolitical economies of the "new world," the socio-political economies of "old
Europe," etc. The point is, of course, that even as a matter of law, not one of
these can be unconditionally determinative.
TEMAS Y ACTUALILDADES
2007]
ILL UMINA TING LEGAL CHANGE
1149
must be attentive to one's assumptions about how debtors and
creditors actually respond to legal norms and assess whether like
assumptions are operative in the receiving system. Here is an
example. In some States there is little reluctance among merchants
to invent proof and assertions of facts long after an event has
occurred. In these jurisdictions accepting possession as mode of
"publicity" for secured rights is likely to conduce to a proliferation of
transactions tinged with fraud, the true character of which might be
either long or hard to prove in court. Deciding which principles of
publicity and enforcement can be made to work in a given
jurisdiction presupposes a keen sense of how these principles are
likely to play out in the everyday practices of debtors and creditors.
A legal pluralist conception of legal change opens for inquiry the
question whether the official legal regime of secured transactions law
is, in fact, the dominant normative order in a given political territory.
Each of the above examples suggests the extent to which the official
regime is at least partly parasitic on other normative regimes, even
when it claims that it is managing them through its own normative
structures.
84
B. Centralism-Relativisingthe State. Magenta
Secured transactions law reformers are commonly preoccupied
with designing legislation that organizes commercial practice
around the legal regime managed by the political State. This is
paradoxical. Notwithstanding that secured transactions law works
within discrete social categories, and notwithstanding that the
underlying logic is one that is meant to marry economic activity
with regulatory ambition, these jurists believe that the reality of the
law is driven by the statutory or judicial form in which official
legal rules are expressed. Here again, law reform entrepreneurs
make a fundamental error. They believe that State regulation is a
substantive result to be achieved, and this can only be achieved by
This is the legal centralist
explicit action of the State.
preoccupation: the proposition that because the formal artifacts and
institutions of law appear to be those of the political State§ all
substantive law is exclusively the product of the political State.5
84. I have associated the notion of centralism with magenta because it is the
inverse of green, already chosen to represent the most visible and institutionalized
form of law-legislation. In this section, I suggest that the absorption of all nonstate normativity is the external parallel to the association of all internal
normativity with legislation.
85. See Macdonald, Here, There and Everywhere, supra note 12, for a
further discussion of this point.
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5LOUISIANA LA W REVIEW
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Obviously, however, since the measure of substantive legal
change is whether the proposed regime of law to be adopted actually
takes root, it is necessary to attend to the on-the-ground contexts
within which the formal regime under consideration is meant to
operate. These contexts are plural and are infinitely variable as
between States. States have quite distinct socio-economic-political
systems. In addition, the types and actual role of credit institutions
and the contractual practices attending to commercial law
generally vary considerably from country to country. Even when
an attempt at formal legal change does take root, typically through
a legal transplant, it can produce consequences quite different from
those anticipated by enacting legislatures. 86 This is because the
form of law itself is symbolically linked to understandings of
central structural issues in a legal order. If law re-substance
requires attention to the substance of law, law reform must attend
to the form of law. The key question for a legal pluralist, then, is
the extent to which official law actually monopolizes the
normative field.
Because a secured transactions regime rests on basic concepts
of private law, it is important to attend to the nature and form of
this private law. In most market-type economies, this private law
is either codified (as in Continental Europe), or it is largely
unenacted (as in the cases of the many autochthonous legal
traditions), or it is constructed by an amalgam of several discrete
statutes that rest on a largely displaced bed of unenacted law (as in
the case of most common law systems). If the regime is codified, a
decision will have to be made as to whether to integrate the
proposals for legal change into the civil code or keep them as freestanding legislation. The answer is not given simply by formal
factors. For example, if a State has just enacted a new civil code,
to replace its provisions about security on property would be
disruptive to the stability of the code as artifact and therefore a
separate statute might be preferable.
A secured transactions regime must also be adapted to
domestic legal architecture. Not every jurisdiction deals with legal
issues in the same place. Some may deal with priority issues
exclusively in secured transactions statutes, while others may also
address them in a bankruptcy statute. One should not presume that
rules governing security on property have to be enacted within a
single statute that carries the label "secured transactions." In
addition, some jurisdictions have separate commercial courts with
86.
For a subtle discussion, see Guy Rocher, L'Effectivit
d Droit, in
THEORIES ET EMERGENCE DU DROIT: PLURALISME, SURDETERMINATION
EFFECTIVITE
133 (1998).
ET
2007]
ILL UMINA TING LEGAL CHANGE
1151
separate legal norms, rules of evidence, courts, and rules of civil
procedure, and still others have distinctive consumer protection
rules and courts. If so, a choice will have to be made as to whether
to cast the reform in generic terms, or to disperse its rules in
separate statutes for enterprises and consumers.
The institutions and legal infrastructure of civil procedure, i.e.,
the process for liquidating obligations, exemptions from seizure,
enforcement of judgments, and execution priorities, etc., also shape
the possibilities for the regime. If the regime starts from the
principle nul ne peut se faire justice 6 soi-msme,87 considerable
collateral reform needs to be undertaken to permit consensual
realization. Even more importantly, one must account for how the
system works in practice. If it can take three to four years to
obtain a money judgment and another year to obtain enforcement
after that, and if there is no procedure to obtain interim and
interlocutory orders, the regime cannot be based on premises that
assume fast and efficient public enforcement mechanisms.
A legal pluralist conception of legal change contests the two
salient dimensions of legal centralism: (1) the centrality of the
normative order of the State as determinant of the actual social
practices to be modified; and (2) the centrality of North American
conceptions of how commercial law should and will work in any
particular economy.
88
C. Positivism-Interpretation:Cyan
In general, law reform entrepreneurs have great faith that the
formal artifacts they advocate can impose strict limits on the scope
of the legally relevant. The assumption is that, just as the visible
spectrum is limited to the colors the eye and brain can process, the
structure of law is limited to the normative forms that the primary
law-applying organ will recognize as exclusionary reasons for
action. In this conception, the conclusion is that, while infrared
and ultraviolet waves are of the same electromagnetic structure as
colors in the visible spectrum, they are simply not light. There are
two problems with a facile analogy of law to light. The first is that
87. Self justice is prohibited.
88. I have associated the notion of positivism with cyan because it is the
inverse of red, the additive primary already used to represent institutional and
non-canonical forms of law-the common law. In this section, I suggest that the
absorption of the manifold, unbounded forms of argument into a hierarchy of
bounded sources of law completed with ex ante protocols for the relative
weighting is the external parallel to the denial of the independent normative
status of the common law reconstructed through abstraction from judicial or
other decision-making precedents.
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2LOUISIANA LAW REVIEW
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the human intellect is shaped by factors different than those that
shape human cognition. Perceptual differences between people
can only marginally extend the visible spectrum. By contrast,
social, intellectual, and political differences can radically change
the shape of the understanding of human institutions and artifacts.
Second, even if there may be certain "core cases" of human
phenomena, these core cases can never be determined ex ante,
except in a formalistic or tautological way that destroys the
8 9 utility
of the proposed ex ante standards as differentiating criteria.
Here, once more, law reform entrepreneurs make a
fundamental error. They believe that explicit rules are the
substantive result to be achieved, and that these rules can
effectively limit recourse to the implicit substantive norms that the
explicit rules only partly capture.
The legal positivist
preoccupation, then, is that the formal artifacts and institutions of
law can effectively displace the informal and interactional
norms
90
and social structures that they are aimed at regulating.
There are three dimensions in which this preoccupation with
delimiting hard frontiers of a given legal regime shows its
insufficiency. First, the micro-level conceptual structure of a
particular legal regime only provides a set of questions towards
which legal interpretation is directed-it does not provide answers.
Second, social and professional practices will generate the
substantive norms that govern the way the regime is actually
played out in practice. The relative diffusion of legal knowledge
will generate interpretive communities that will generate,
independently of any attempt to control the meaning of the text ex
ante, their own understandings of the text by which legal change is
announced.
Consider first the importance of conceptual structure and
methodological principles within a given legal regime. For
example, if the regime generally tolerates party attempts to
manipulate juridical status or the characterization of a transaction
to profit from a rkgime d'exception, it may be necessary to look for
more general structural norms to prevent acrobatic creditor activity
and also to impede legislative attempts to subvert the priority
regime. Again, if a regime is designed to provide detailed
guidance for parties through suppletive rules and to trace out the
normal course of events, it is important to consider how the legal
system typically makes its structural norms meant to deal with the
89. Macdonald & Kleinhans, supranote 12.
90. For a detailed elaboration of this approach to interpretation, see
Roderick A. Macdonald & Jason Maclean, No Toilets in Park, 50 MCGILL L.J.
721 (2005).
2007]
ILL UMINA TING LEGAL CHANGE
1153
pathological cases operational, whether it relies on bright-line, ex
ante, non-defeasible and non-waivable procedural rules, or deploys
equitable, ex post liability rules that are couched with adjectives
like reasonable, appropriate, fair, good faith, etc., radically
conditions interpretation.
In addition to these methodological points that look beyond the
text of any legislative act, any reform must also take into account
the practices of courts and related public institutions, such as the
sheriffs office or the State execution service. Sometimes a lack of
confidence in the regime of security on property results from a
quite justifiable lack of confidence in the legal system as a whole.
Where the idea of an impartial and independent judiciary does not
form part of the constitutional order, where judges can be bribed,
or where their legal education does not equip them to interpret and
apply complex legal prescriptions, the reform has to be tailored to
provide for alternative adjudicative possibilities, such as
commercial arbitration. Like alternatives may also have to be
imagined where all aspects of the realization process, up to and
including execution of judgments, are in the hands of State
officials.
Similar considerations bear on the role of the legal
professionals and entrepreneurs in making the regime work. In
some States, the legal profession is both unlicensed and
unregulated.
Here, legislation delegating significant ethical
judgment to lawyers may be unwise. Conversely, in other States,
the profession is strictly regulated, but there are simply not enough
lawyers to provide transaction-specific advice to borrowers and
lenders, and therefore the regime has to be designed so it can be
operated by people without formal legal training. Typically this
means the enactment of a greater number of non-waivable
structuring rules and a number of mandatory, fill-in-the-blank
forms. Finally, the regime must be oriented to the sophistication of
business activity, the nature of entrepreneurship, and the general
diffusion of legal knowledge within the State. For example, in
some States, capitalist entrepreneurship has acquired decidedly
rapacious if not corrupt and thuggish undertones. Providing a
surfeit of private coercive creditors' rights in such situations may
not be conducive to an efficient, let alone equitable, regime.
A legal pluralist conception of legal change imagines that each
of the persons involved in the functioning of a regime of law has
an independent role to play in the interpretation of its artifacts. To
assume that it will always be the case that "primary law applying
organs" have a monopoly on interpretation and that it is possible to
stipulate ex ante a methodology for generating a true interpretation,
is to ignore that other officials are also interpreters, that legal
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1LOUISIANA LA W REVIEW
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professionals do so, and that parties themselves are the primary
drivers of interpretation. The positivist assumption simply does
not track the way in which legal change plays out on the ground.
D. Prescriptivism-BeyondLegal Subjectivity: Black9 '
Those who believe that law reform automatically produces
legal change tend to imagine law as a top-down enterprise in which
there is little difficulty in ensuring human behavior that is
compliant with legal prescription.
Even those law reform
entrepreneurs who are cognizant of the difficulties of subjecting
conduct to the governance of rules believe that, with sufficient
certainty of enforcement and sufficient severity of sanction, law
will produce its normative effect.
While this more subtle conception at least attends to the
purposes of law, including the notion that legal rules are intended
to produce consequences, it rests on a pair of propositions that are
dubious at best. The first of these, to which this article has already
adverted, is that, simply because behavior appears to be in
conformity with what the formal rule commands, it does not follow
that the conforming behavior is in any way consequent to the
existence of the rule. Indeed, the judiciary, as an institutional
expression of the order imposed by a legal regime, is the only actor
that typically interprets legal rules as causative. The second
dubious proposition is that consequences (sanctions) within the
legal order will be sufficient to induce (if not ensure) compliance.
In what way, however, does the consequence of having a will
declared invalid for a failure to have it witnessed by two people
matter to a testator and beneficiaries
92 who would do what the
purported will directed in any event?
Underpinning the prescriptivist claim is a naYve faith that
engineering legal change can be a relatively context independent
endeavor. Thus, North American norm entrepreneurs, who seek
directly to incorporate into the law of another State certain relatively
refined principles with which they have become familiar, tend to
downplay the extent to which domestic law influences legal regimes.
91. As the diagram intimates, at the conjuncture of the three primary
subtractive colors, one produces a reflected hue approaching black-the result
of the equal mixing of the three additive primaries. When they are mixed in
dilution the result is varying shades of grey. The association of black with
prescriptivism is meant to suggest that the total normative picture is meaningless
when law is conceived as prescriptive. In such cases, the combination of all
prescriptive normativities means that there remains no human agency.
92. See generally Macdonald & Sandomierski, supra note 12 (discussing a
detailed pluralistic critique of prescriptive preoccupation).
2007]
ILL UMINA TING LEGAL CHANGE
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But it is simply not possible to make finely grained legislation
relating to secured transactions operational until there is broad
consensus about and acceptance of the basic operative principles of a
modernized secured transactions regime. While some States may be
able to immediately adopt reform projects that rest on the same
assumptions about the character and capacity of the economy, the
market for credit, the ambitions and structure of the legal professions,
and the expertise of the judiciary that drives North American law,
this will rarely be the case. Frequently, establishing a well
functioning rudimentary model of secured transactions is better
than enacting an excessively refined regime that cannot be kept in
working order.
More than this, a secured transactions regime will necessarily
shape human relationships of the type that are usually reflected in
basic principles of private law. Typically this means that it must
respect the fundamental concepts of obligations and property
within a given State. For example, as long as a particular State
maintains rigorous distinctions between owning and owing, and
between real rights and personal rights, a unitary "substance of the
transaction rule" in the manner of Article 9 of the UCC that
attenuates these distinctions for certain publicity and enforcement
purposes cannot be imported directly. The substantive idea must
be recast so that the goal of achieving functional equivalence may
be realized through various provisions that respect the logic of the
credit provider claiming ownership.
This in turn provides
recognition for the fact that social relationships between sellers and
buyers will be understood in such countries as fundamentally
different 93
from social relationships between lenders and
borrowers.
If we attend to the way in which subtractive primaries work to
enable us to produce different colors without the need to constantly
project a source of light, the character of this last claim becomes
clear. A subtractive primary, like cyan, magenta, or yellow, is a
hue (say of paint) that reflects light wavelengths of that hue and
absorbs all others. As a result, our eyes perceive that hue. When
the three primary hues are combined together, their effect is to
absorb all light. If we imagine that formal rules alone induce
behavior, this is like assuming that any particular hue absorbs all
light. In fact, only some light is absorbed. If one seeks total
absorption, then it is necessary to combine all subtractive primaries
to the point of saturation. At this point, the prescriptivist claim
93. See Michael G. Bridge et al., Formalism, Functionalism, and
Understandingthe Law of Secured Transactions,44 MCGILL L.J. 567 (1999).
1156
6LOUISIANA LAW REVIEW
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reveals its blackness. All human agency, the possibility to choose
normative commitments, vanishes.
The anti-prescriptivist claim in law reform, i.e., the claim for
agency, is radical in that it also contests many versions of
sociological legal pluralism.94 That is, if other normative sites are
to be understood simply as another legal regime of the same
character as that hypothesized for the State there is really no
difference between legal pluralism and its everyday foil. Adopting
an anti-prescriptivism stance empowers legal actors not only to
constitute and choose among rules. It also enables them to choose
the role that rules will play in their lives: do they constrict?
empower? facilitate? teach? entertain? inspire? The way in which
people position themselves in relationship to law, of whatever
kind, must be as distinctive in consequence as individual people
are themselves.
Monism, centralism, and positivism all reflect a different
preoccupation with delineating the legal from the non-legal, either
numerically (monism), spatially (centralism), or analytically
(positivism). Prescriptivism is animated by the same ambition: it
asserts that there are rules, and that there is the rest of the world on
which they operate. Anti-prescriptivism is an alternative way of
characterizing an interpretive choice for citizens about how they
wish to conceive law, themselves, and the relationship they have to
law. The anti-prescriptivist perspective invites legal subjects to
imagine themselves as legal agents, and to discover the constitutive
potential of their own actions. Let me recur to the second question
posed earlier: "What is the law in Louisiana on the perfection of
security interests in corporeal moveable property?" The antiprescriptivist response is not to look somewhere "out there" for an
answer. Rather, it is to reply, "Whatever the person posing the
question wants it to be."
In the various sections of this Part, standard accounts of
everyday instrumental law reform have been contrasted with an
alternative account characterized as pluralistic, polycentric,
interactional, and anti-prescriptivist substantive legal change. Law
reform understood as legal change is a complex endeavor
embracing everything from the explicit, textual, legislative
modification of legal rules, all the way to the implicit, non-textual,
94. A similar conclusion is announced by Emmanuel Melissaris. Emmanuel
Melissaris, The More the Merrier? A New Take on Legal Pluralism, 13 SOC. &
LEGAL STuD. 57 (2004).
2007]
ILL UMINA TING LEGAL CHANGE
1157
informal, even tacit, re-orientation of practices and the principles
they instantiate. Such a palate of legal responses directly raises a
fundamental question: "To whom does law belong, and to whom
does its 'reform' belong?" In the discussion of doing law reform
in this Part, the premise has been that the successful practice of
legal change depends on engaging with and being understood by
those to whom it is intended to speak. This means not just
politicians, the legal professions, and the principal lobby groups
that can influence politicians, but also, above all, the public.
The various considerations reviewed in this Part cannot be
reduced to a formula or plotted onto a template against which
enacting legislatures can assess the merits or demerits of any
specific proposal for leal change. This is true first because the
problem is polycentric. 6 Each factor implies the exercise of
judgment in the weighing of the relative significance of a given
factor within an overall legal framework and in determining
optimal tradeoffs in any particular State. It is also true because the
precise nature of most contextual factors will be highly contested.
Both those who argue for the impossibility of legal transplants and
those who claim that the specialized character of the knowledge
possessed by legal 9lites makes transplantation relatively
unproblematic are given to monochromatic assertions about the
context of law reform. By contrast, jurists who have actually
participated in the international law reform process and then stuck
around to assess the effects of their handiwork are much more
sanguine about the monist, centralist, positivist, prescriptivist
"recipe book" approach. 97
CONCLUSION: AFTER THE RAINBow
These reflections on law reform and substantive legal change
argue that the future of the endeavor must have a different timbre
than presently. Because law is more than a system of explicit
rules, specialized offices and institutions, and determinate
95. For a discussion of law reform that does not presume that those with a
formal legal training are the primary agents and addressees of legal change, see
Roderick A. Macdonald, In Search of Law (Oct. 4, 1998) (unpublished
manuscript prepared for the Law Commission of Canada, on file with author).
96. I derive my notion of polycentricity from Lon Fuller. Lon L. Fuller,
The Forms and Limits ofAdjudication, 92 HARV. L. REv. 353, 393-405 (1978).
97. The issues are nicely framed by Roger Cotterell and Lawrence
Friedman.
See generally Roger Cotterell, Is There a Logic of Legal
Transplants?, in ADAPTING LEGAL CULTURES, supra note 3, at 70; Lawrence
Friedman, Some Comments on Cotterell on Legal Transplants, in ADAPTING
LEGAL CULTURES, supra note 3, at 93.
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5LOUISIANA LAW REVIEW
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procedures which serve an instrumental purpose, legal change
must be primarily non-instrumental. This is not to denigrate
official law reform. State legal institutions and their explicit
artifacts give form to debate about life's most important questions.
They can be powerful symbols of how we imagine who we are,
and how we conceive of our relationships with others. In the end,
however, it is this human imagination, reflected in the implicit and
inferential contexts of diverse modes and98sites of legal activity that
makes substantive legal change possible.
Understanding law reform from the perspective of human
interaction is not like compiling a grammar and lexicon to compare
the formal properties of diverse natural languages. It is, rather, like
understanding the relationships among language and other
communicative symbolisms such as art, dance, music, and ballet.
Legal pluralism also leads to a disdain for defining systemic
boundaries by reference to official institutions and for a conception
of law not rooted in the coercive authority of institutions. Because
the forms of law are not, in themselves, instrumentally normative,
should not the endeavor of law reform also be about providing
alternative linguistic vehicles for enacting legal rules? And, if
legal normativity may also be expressed in non-linguistic forms
(consider, for example, the earlier discussion of practice), it would
not be unthinkable for a law reformer to engage in non-linguistic
symbolic discourse designed to suggest new legal practices. All
human communicative symbolisms can become resources of legal
change: an agency could, conceivably, commission symphonies,
sports activities,
put 9on
9 plays, sponsor art exhibitions, undertake
etc.
In any case, law reform requires, first of all, the internal
exercises of seeing the various forms of law in their disaggregated
yet constantly interpenetrating context; this allows for agility and
But law re-substance
openness in law reform design.
acknowledges that law re-form is only ever exhortatory. It can
only aspire to bring out the self-made re-substance on the ground.
The more law reformers act in a manner that avoids the external
pitfalls of monism, centralism, positivism, and prescriptivism, the
98. Of course, official law reform has been a point of entry for engaging the
question of normative change. A parallel exercise could have been undertaken
in various other contexts: law reform in formal institutions such as clubs and
churches, unions and universities, corporations and communities; in high-affect
institutions such as families; or in knowledge-based institutions such as
professional associations. This idea is nicely framed by Nicholas Kasirer.
Nicholas Kasirer, Values, Law Reform andLaw's Conscience, in THE UNIDROIT
PRINCIPLES AND THE CIVIL CODE OF QUtBEC: SHARED VALUES (1997).
99.
For various suggestions to this effect, see Macdonald, supra note 18.
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ILL UMINA TING LEGAL CHANGE
1159
more plural they can be, and the more likely that re-substance will
occur.
The point of "law reform" is to bring about legal change. It
does not mean imagining a perfect set of rules, such as legislative,
customary, or common law rules, to achieve a change in legal
form-a re-form of the law. It means imagining legal rules to resubstance the law. Whatever the mode and whatever the site, law
and legal change indwell: they are not there (as form) for the
taking, but are here (as substance) for the constant (re)making.
EPILOGUE
Law making in a global world is an evocative idea. It conjures
conflicting images. In one, we can attempt to perceive how
"globalization" might affect not only the forms and instruments,
but also the content of domestic law. Do our trading partners
shape the trajectory of our law? Does significant immigration
change the assumptions upon which our legal order is based? In
the other, we can attempt to perceive the influence of "global law"
as a transnational overlay upon national law. Do our treaty
commitments require us to acknowledge their supremacy over our
domestic legal order? Do our own multi-national enterprises
generate an autochthonous law that displaces national law
everywhere?
In this article I have approached the matter differently. I am
much less concerned about any particular outcome of globalization
than I am about how it has an inevitable retrogressive consequence
on our ability to understand the liberating potential of law. Just as
scholars with anodyne, punitive conceptions of the criminal law
have been fleeing to the international domain now that they have
lost credibility domestically, so too scholars with anodyne,
formalistic conceptions of high-affect adult relationships are now
fleeing to international human rights organizations, and scholars
with anodyne, efficiency-driven conceptions of commercial law
have been fleeing to international agencies promoting legal reform
to States in the course of development. However beneficial the
loss of naYve norm entrepreneurs may be for domestic endeavors of
legal change, it is probably more detrimental to States without the
resources to resist the blandishments.
My hypothesis that unitary law re-form is the antithesis of
pluralistic law re-substance rests on two propositions. First the
plurality of modes of law within any legal system requires us to
adopt a theory of legal change that sees these modes of law not as
pieces of a single legal order, but as each constituting a discrete
normative regime. Second, the plurality of sites of law within any
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psycho-social-geographic space requires us to adopt a theory of
legal change that does not see these sites of law as human artifacts
that are separate from the world upon which law is meant to
operate. In the end, I believe that attending to the inescapable
complexity of law and explicitly disanchoring our understanding of
law reform from theories of the legal enterprise long discredited
are the best strategies for ensuring meaningful engagement with
the idea of law making in a global world.