This paper (i) identifies the reasons for the general absence of legal taxonomy in public law scholarship; (ii) argues that legal taxonomy and taxonomic debate is vital to the principled development of public law and rigorous legal analysis, and is of acute importance today given trends towards open-ended balancing in public law adjudication which threaten to radically undermine the rational ordering of the legal system; and (iii) takes the first steps towards developing a map of English public law fields.
As to (i) the reasons for the absence of taxonomic work in public law include that the very notion of public law was long unknown to English law and is steeped in theoretical disagreement; that modern legal taxonomers have followed their Roman forebears in focusing on private law; and that contemporary trends in legal scholarship are away from doctrinal work, and particularly doctrinal scholarship that looks across different fields of law.
As to (ii) legal categorization enhances our understanding of the law, and facilitates right answers to legal questions, rigorous and complete legal analysis, and rational and coherent legal development. Legal taxonomy promotes formal rule of law principles whereas approaches that eschew categorization are likely to radically undermine those principles. Legal scholars are uniquely well-placed to undertake analytical doctrinal work, including legal taxonomy, and such work therefore offers an important avenue for legal scholars to make a distinctive contribution to knowledge, and the legal system.
As to (iii) the paper takes the first steps towards developing a map of different fields. The taxonomy does not take the division between public law and private law as its starting point, placing no normative weight on that putative divide. Rather it seeks to simply categorize different fields of law according to their primary functions. In order to illustrate the taxonomic method, and to begin the process of legal categorization, the paper identifies and explains two distinct categories: (1) the law relating to regulation of public power in the public interest; and (2) the law relating to protection and vindication of basic individual rights. These different fields of law are each characterized by distinctive normative concerns and perform discrete and distinctly valuable functions. Different rules, principles, concepts and methods characterize each field, these differences being explicable and normatively justified by reference to the different functions that each field performs. Having taken the first steps towards legal categorization the paper then proceeds to demonstrate how identification of discrete fields has a bearing on analysis of contemporary legal issues, examining the question of whether the proportionality method developed in human rights law ought to be read across to the common law of judicial review. The paper concludes that without good legal taxonomy and vigorous taxonomic debate, complete, nuanced, and rigorous legal analysis may be impossible.
Varuhas, Jason NE, Taxonomy and Public Law (September 16, 2017).