Navigating Common Law Complexity

2. Februar 2024

In our upcoming Max Planck Lecture in Legal History and Legal TheoryShivprasad Swaminathan (Dean-Designate, Shiv Nadar School of Law) delves into the theoretical foundations of the common law, drawing inspiration from Michael Polanyi's concept of polycentricity. In the realm of the common law, polycentricity involves multiple decision-makers employing tacit knowledge to anticipate and align their decisions with the collective judgment of their community. Following the decision-making process, these individuals seek to justify their choices by highlighting parallels with previously decided cases. The anticipation aspect relies heavily on tacit knowledge, acquired through extensive training, where common lawyers internalize the perspectives and sensibilities of their professional community, guiding their responses in various situations.

The concept of polycentricity provides insights into several aspects of the common law that may seem perplexing to outsiders, including: a) The adaptability of common law precedent, influenced by the discretion afforded to judges in determining the rationales behind past decisions. b) The counterintuitive nature of analogical reasoning in the common law, allowing judges significant flexibility in selecting analogies after reaching a decision. c) The model of normativity inherent in common law operations, demonstrated through reasoning with precedent and analogical reasoning. This model illustrates how normative constraints are maintained, even in the absence of explicit rules or standards within the common law system.

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