Law is a distinct and valuable form of social order in part because legal rules are structured in a system that authorizes some person or body to modify the system by changing one or more of its component rules, or at least changing the application, or likely application, of one or more of those rules. The content of the law should be open to change in this way, most obviously when and because a particular rule may be unreasonable so that the common good of the community is best served by its removal. The rule in question may always have been unreasonable so that it should never have been adopted. Alternatively, a rule may have become unreasonable so that it should now no longer be maintained. For example, a rule permitting common land use may become unreasonable when the population grows and economic conditions change. Legal change also extends to introducing new rules. There is reason to introduce a new rule when this would serve the common good. When an unreasonable rule is removed, there may often be good reason to create a new rule. The repeal of a rule permitting common land use may warrant introducing a rule to enable that land to be divided and alienated. Further, there may be reason to adopt new rules to instantiate some aspect of the common good not addressed by the existing law. For example, discovering a certain type of pollution may be a reason to introduce new rules to regulate the relevant activity.
Hart argued that the static character of rules in the pre-legal society is a defect that warrants the introduction of a particular type of secondary rule, the rule or rules of change.3 This type of rule, he said, authorizes some person or persons to repeal old rules and to introduce new rules. Hart did not explain in detail the need for rules of change, taking it to be obvious that a society would be in bad shape if it had no means to modify the content of the rules that directed social life. And he thought it plain that the person or body that is authorized to change the law would be a legislature.4 This understanding is consistent with the ordinary meaning of legislate, which is to make law.
The rule (or rules) of change has not been the focus of close academic study. Hart’s later argument centred on the rule(s) of recognition, which sets out criteria for legal validity and unifies the legal system.5 The third type of secondary rule, the rule(s) of adjudication, sets up a procedure to settle
disputes, with officials impartially applying valid rules.6 Hart rightly thought that the rule(s) of change and recognition had to be closely linked: for the legislature to change the law, the changes that it
enacted had to be identified as valid law. A rule of change identifies a person or body with authority to change the law; the rule may also specify the authority’s jurisdiction to legislate and the procedure it has to follow to legislate.
A rule of recognition may overlap with a rule of change. In the Westminster constitution the doctrine of parliamentary sovereignty, conveniently stated by Hart in the formula ‘whatever
Parliament enacts is law’, constitutes part of the rule of recognition as well as the rule of change.7 Elsewhere, the rule of change is not part of the rule of recognition. In the United States, the legislative authority of Congress is conferred by Article I of the Constitution. The rule of recognition is that the Constitution is law. The Constitution provides for its content to be changed by way of amendment. The rule authorizing Congress to legislate is contingent and may itself be varied by exercising the rule of change that is the Constitution’s amendment procedure. The wide (but not unlimited) jurisdiction that Congress has makes it the federal legislature and Article I the leading rule of legislative
competence and rule of change. The American example confirms that there may be more than one rule of change in a system. The state legislatures in the United States and the regional assemblies in the United Kingdom exercise legislative authority under a rule of change. In the latter case, the authority of the legislative body is itself grounded in the act of the national legislature, Parliament.
The appropriate response to the community’s need for deliberate legal change, evident in every modern legal system, is to institute a body to make law deliberately. Such a body is a legislature. The need for change may be answered by a legislature that has limited jurisdiction, especially if the limits exist to preserve the legislative authority of a subsidiary body that acts for a local community.
However, the common good will not be well served if the lawmaking body lacks sufficient freedom to change the law as reason demands. Therefore, while constitutional limits are not objectionable per se, they should be closely specified and adopted with caution. The alternative is that the lawmaking body—indeed, the whole set of such bodies in a community—may lack the capacity to act to serve the common good. The separation of legislative powers amongst lawmaking bodies and the extent of legitimate constitutional limits are highly contingent. The point of general application is that the common good requires an institution that has the capacity to change the law when need be.
I argue that the legislature, with its capacity to change the law deliberately, is an institution that is fundamental to the central case of law. Raz argues that a legal system can exist without norm-creating institutions, but not without norm-applying institutions.8 His concern is with the minimum conditions that must obtain for a set of norms to be a system. This focus is not sound. One may imagine a
community that shares a set of norms and yet lacks an official means to apply the norms, with self- help being the order of the day. The community has a form of law and yet lacks much that is valuable about the central case of law, including impartial official application of its rules. Raz’s minimal system is likewise a semblance of law, merely analogous to the central case. Any community structured in this way could not respond to the need for legal change and would lack one of the
valuable, distinctive features of a worthwhile legal order, viz. the capacity for a community to act to modify the rules that structure its social life. The latter point suggests a further feature of the central case of the legislature: it is the body that is set up to legislate for this community. It may be that it need not be representative—I consider this later—but the object of its action is to change the set of legal rules that the community adopts to further the common good of that community.
legal change by other means is unreasonable. Customary rules may change over time, and one need not be Hayekian to think that sometimes those rules will be reasonable. However, the slow and ad hoc development of custom alone is insufficient to serve the common good; this is the reason why a rule of change is needed.9 In many jurisdictions, the decisions of courts are a source of law, so that legal change may follow judicial action. The primary point of an adjudicative decision is to settle a dispute about what the law is, or how it applies or is to be applied to particular facts involving the parties to the dispute. The point is not to change the law.10 Thus, case law arises as a consequence of another activity, the adjudication of disputes, whereas the point of legislating is to change the law. Legislatures may serve other purposes but their distinct function, that which explains why they are instituted and maintained, is to change the law by enacting legislation.11
It would be unreasonable to rely solely on case law development to change the law. The case law method is for the judge to decide the particular case, often by analogy to previous cases, with that decision bearing on the weight of argument in later cases. This is an incremental and indirect
approach to legal change. It may permit judges over time to develop a set of reasonable legal rules. However, the approach runs into difficulty in certain circumstances. The common good may call for comprehensive, decisive legal change, rather than piecemeal, incremental reform. And often,
reasonable change will require processing complex information and choosing amongst open alternatives. Judges largely lack the capacity to respond in this way.12 A line of cases may be
grounded in error or have been overtaken by rapid social change. It is difficult, for good reason, for judges to correct long-established errors or to respond decisively, and if need be radically, to new circumstances. The central judicial task is to decide disputes by reference to existing law. It would be unfair to the parties to the dispute, as well as to other members of the community, for the dispute to be the occasion of deliberate lawmaking, fully open to reason. In any event, the judge is not well placed to respond to the reasons that settle what the law should be. His concern is rightly with this particular dispute rather than the general state of the law and its connection to the common good. And he lacks the time, expertise, and information needed to deliberate and choose the content of the law.
The reason for a legislature does not entail that it must legislate frequently. I make no claim about how much legislation a community needs, as that is highly contingent. It may be that the legislature may not have to act often or that it has to act repeatedly and radically to reform the law. It is
consistent with the legislative function for the legislature to permit secondary forms of legal change— case law and custom—to proceed. The legislature has the capacity to act to correct or to supplement case law or customary legal rules and the reason for this capacity is precisely so that some body is able to intervene to ensure that the content of the law serves the common good. It follows that the reasonable exercise of legislative authority requires oversight of the content of the law and judgment of the extent to which that law realizes the common good.
Gardner argues that legislation is the paradigmatic case of law because it is the clearest case of posited law, which is to say law that is deliberately made.13 This is true, but obscures the more important point that the capacity to posit new rules is valuable. The key advantage of making law deliberately is that the lawmaker is able to respond directly to the reasons that bear on changing the law. If there is good reason to repeal a law, that is if it is obsolete, unworkable, or pernicious, then one may repeal it; if there is good reason to introduce a new rule, in that it helps restrain wrongful action or opens up valuable new opportunities, then one may act on those reasons to adopt law to that effect. This direct and open responsiveness to all relevant reasons distinguishes legislating from lawmaking by other means.14 A judge deciding a case responds to that dispute and the existing legal
materials limit his decision. It is not open to him simply to change the law to be as he thinks it should be if it were open to him to posit the law anew. The judge understands that he is not a legislator and that it is not his task to oversee the content of the law and to act freely to change it as is required to instantiate the common good.15
The legislature responds to the reasons to change the law. That is, it decides when there is good reason to act and how, if it acts, the law is to change. The capacity to legislate entails the freedom to settle the content of the law by acting for that end. Freedom does not mean that legislating is arbitrary. Rather, it means that the way in which the legislature acts, including whether it acts and the content of the law it makes, is settled not by rules but by how the person exercising legislative authority chooses to respond to the reasons that he or it perceives. The legislature is self-starting and self-directing. It need not wait for a case to adjudicate or a petition to arrive before it acts, and within jurisdiction it may legislate as it sees fit. The exercise of legislative authority is thus under the voluntary control of the institution itself.16 For the legislature to act in this way it must have the capacity to formulate proposals for legislative action, and to evaluate and revise them in response to reasons that bear on the common good. To legislate, one must consider the common good, propose a legislative response, reason about its merits, and perhaps modify it accordingly, before deciding whether to adopt the response. In short, for an institution to be a legislature it must deliberate about what should be done and it must have the capacity to shape legislative proposals. An institution confined to endorsing or rejecting the content of proposals put forward by another body, as the head of state or perhaps one house of a bicameral parliament might do, would have a limited legislative function but would not itself be a legislature.
The community is not able to legislate itself, because the community at large lacks the capacity to consider the reasons that bear on legal change and to formulate proposals for legal change that are responsive to the relevant situation. The community might participate in legislating if it adopts procedures to act on direct legislative proposals—referenda. This would only be participation in legislating because the shape of the proposal for legal change would not be within the control of the community itself. A legislature that was structured to overlap the community, as to some extent the Athenian assembly was, would have great difficulty exercising authority in a rational fashion. The reasonable person has good reason to help authorize an individual person or a group smaller than the entire undivided community to legislate. And indeed, at different times and places, legislatures have been established that have one member or many; I discuss this further in chapter 6, sections I—II.
Reasonable persons accept the authority of the legislature because they recognize the need for law and for an institution to oversee and change the law when necessary. The exercise of practical
authority is deliberate action in response to reasons—reasons that have directive force for reasonable acting persons by identifying and directing towards intelligible goods which stand as worthwhile goals for effective and available means prescribed by these reasons. Where the reasons address a community, goods to which they direct will be common goods or elements in a or the common good. The common good of the community is complex and there are many ways to attempt to serve or realize it. The legislature is needed to settle the content that the law of this community shall have, amongst otherwise open alternatives. The community needs the legislature to act in response to the reasons that bear on these alternatives, selecting that which it judges should direct the community: that is, which will serve or realize the common good.
There is good reason to think that only an institution that is free to deliberate and to act as and when it chooses is well placed to make good law. The legislature responds directly to the complexity
of the common good in that its deliberation is open to whatever is relevant to the good of the
community, including moral argument, empirical findings, and the interests of various members of the community; I discuss legislative reason in detail in the next section. The reasons for change may justify a complex, comprehensive decision as to what shall be done. The legislature is able to act to introduce a detailed set of legal rules—a code—that addresses an aspect of the common good in this comprehensive way. The legislative act is also able to settle decisively what shall be done, in a way that is not open to challenge or argument. Legislation is posited at a certain point in time in a
canonical formulation and is prospective in effect. It is thus a form of law that is suited to the rule of law. Public promulgation and canonical formulation make the legal change easier to locate and grasp than that found in unwritten custom or in the best understanding of a line of cases. This advantage is contingent as particular rules of case law or custom may be extremely clear and well settled, whereas legislation may be vague or impenetrable. However, the structure of the legislative act is directed towards positing law in the best form possible, by way of a public, canonical text, which is the focus of legal reasoning.
To change the law is to change the set of propositions that constitute the law. The law is this set of propositions in the sense that its primary reality is that it provides reasons for action for the members of the community whose law it is. That is, a law is a prescription of practical reason promulgated by a legal authority, a prescription which the person subject to the authority is to adopt as if it were self- prescribed.17 I talk of propositions because what matters is the reason for action, the directive
conceived of as a rule that is fit to be adopted in my own deliberation and action. The particular textual formulation in which that proposition is expressed does not have this same importance in action and is of secondary interest, even when the form of words is canonical, so that interpreters must engage with that form of words. The same legal proposition may be set out in various alternative formulations and much of legal reasoning seeks to distinguish that proposition from its contingent formulation and to identify the proposition that is made legally true by the interaction of the
formulation with other formulations and with propositions of law already accepted as true. It follows that in acting to change the law the legislature should aim to change the existing set of propositions,