Areas of Law: Three Questions in Special Jurisprudence

Areas of Law: Three Questions in Special Jurisprudence

Abstract-This article addresses three fundamental questions about a key phenomenon in special jurisprudence, 'areas of law': (i) what is an area of law; (ii) what are the consequences of dividing law into distinct areas; and (iii) what constitutes the foundations of an area of law. It claims that (i) 'an area of law' is a set of legal norms that are intersubjectively recognised by the legal complex as a subset of legal norms in a given jurisdiction; (ii) the sub-division of law into multiple areas matters to the content and scope of legal doctrine, to law's perceived legitimacy and possibly to its effectiveness; and (iii) the search for the normative foundations of an area of law is typically an inquiry into its 'aims' or 'functions'. This article systematically articulates, explains and answers these three questions generally, in relation to areas of law as such.

One. Introduction

Legal theorists, for the most part, used to confine themselves to the enterprise of understanding the nature of law and related phenomena generally. Only relatively recently has legal theory seen a surge in scholarly interest in theorising discrete 'areas of law' (variously described as 'special jurisprudence' or 'particular jurisprudence', to contrast the field with general jurisprudence). General jurisprudence focuses on the nature of law and legal systems generally. It concerns itself with questions such as the conditions of a norm being a legal norm, the nature of legal obligation, whether the rule of law is inherently valuable, the nature of adjudication, and the possibility and implications of legal pluralism. The subject matter of theoretical inquiry in special jurisprudence, on the other hand, is normally a discrete area of law, such as labour law, discrimination law, tort law, family law, criminal law, and constitutional law. While the interest in a theory of some areas of law-such as criminal law or contract law-has existed for a while, theoretical attention to most other areas of law is a relatively recent phenomenon.

The purpose of this article is to address three fundamental questions about the subject matter of a key phenomenon in special jurisprudence: 'areas of law'. First, what is an area of law (the ontological question)? Second, what effects occur or are likely to occur as a result of the existence of areas of law (the consequential question)? Third, what, if anything, is the normative foundation of an area of law (the foundational question)?

The answers to these three questions matter both to the enterprise of special jurisprudence but also, to some extent, to legal practice. As to special jurisprudence, the first question concerns what is meant when a theorist offers a theory of an area of law-what makes it the case that a norm belongs to an area? This bears upon the issue of a theory's fit with the law: to what extent, for example, is it acceptable to dismiss a particular norm as not really belonging to an area of law in order to argue that one's theory fits the data? This depends on what makes it the case that a norm belongs to an area. As to legal practice, the law not infrequently makes the application of legal norms dependent upon area-based classifications. Legal education and legal thinking are pervaded by classification of norms into areas. Given the apparent importance of this phenomenon, obtaining a clearer understanding of its nature seems worthwhile. The second question has been considered in part by the literature on legal taxonomy, which has addressed the values served by classification of legal norms into categories. What our discussion adds is a focus on the likely empirical effects of the organisation of discrete legal norms into areas of law. The answer to the third question is primarily of theoretical concern. Despite the ubiquity of 'functional' analyses of areas of law or analyses that seek to identify the 'aims' of an area of law, the precise meaning of what it is to attribute 'functions' or 'aims' to an area remains obscure. We draw on the extensive philosophical literature on functions to illuminate this question. It follows from our analysis that a search for the normative foundations of an area of law is inherently a search for its functions or aims. So, our final section sheds light on the conceptual relationships between the functions, aims and foundations of areas of law.

Section Two claims, in response to the ontological question, that 'an area of law' is a set of legal norms that are intersubjectively recognised by the legal complex in a given jurisdiction as a subset of legal norms in that jurisdiction. Thus, we offer a 'social fact' answer to the existence question, in virtue of what does an area of law exist?. In relation to the consequential question, section Three shows that the sub-division of law into multiple areas matters to the content and scope of legal doctrine, to law's perceived legitimacy and possibly to its effectiveness. Finally, in order to answer the foundational question, section Four clarifies the sense in which areas of law have functions or aims, and shows that the search for the normative foundations of an area of law is typically an inquiry into its 'aims' or 'functions'. All of these questions have been asked in a specific form with respect to particular areas of law before: on ontology, discrimination law and labour law theorists, for example, have worried about whether there is any unity to these areas of law. With respect to the consequential question, doctrinal scholars make it their business to account for the interaction between areas of law and their discrete norms, whereas socio-legal scholars have examined the legitimacy and effectiveness of certain areas of law. And foundational accounts of discrete areas of law constitute the bulk of the literature in special jurisprudence. No one, however, has systematically articulated, explained and answered these three questions generally, in relation to areas of law as such.