In this Occasional Paper, Professor Norman Barry argues that the current crisis in the law stems from the demise of the common law (which consists of general rules of conduct guiding individuals in the pursuit of their self chosen goals) and the corresponding rise of statute law (which is used to promote particular social outcomes). The classical idea of justice as the impartial application of universal rules has, under majoritarian democracy, given way to politicised conceptions of ‘social justice’ in which particular classes of citizens are singled out for special treatment. Modern legal doctrines insisting that the law must have an author have resulted in the replacement of traditional legal reasoning with a sociological approach that explains judicial decisions solely in terms of social forces.

Although there is no obvious way in which the classical idea of law can be revived, any progress in that direction would have to involve both a reassertion of the courts’ role in reviewing economic legislation and some reduction of the powers of legislatures, whether by a modification of the simple majority rule or by more comprehensive constitutional rearrangements.