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[Jurisprudence] One of the core ideas of European-style codification is to create genetically democratic laws, that is, to have all law be properly promulgated by a democratically elected body of representatives. In many instances, that enactment was, of course, a re-enactment of substantive rules that predated the formation of a democratically legitimized body. But re-enacting the old rules cured the genetic defect, that is, the fact that the old templates had never been promulgated by a democratic body. Codification is the idea that an entire legal universe can be created according to (i) substantive rules of reason; and (ii) by a democratic body. Thus, every civil law universe has emerged from a big bang, from an initial singularity of reason and democratic legitimacy. What came after the big bang is law; what came before is legal history. That sharp distinction, for obvious reasons, does not exist in the Common Law.

I fail to understand how Dworkin’s chain novel theory, as interpreted by Bloomfield, could solve the genetic problem of legitimacy. One could argue that continued application of pre-legitimate law by legitimate judges is a form of re-enactment. But that presumes that the judges themselves possess sufficient democratic legitimacy to make laws, which is questionable (and generally not claimed by the judiciary).

In my view, the big bang theory of legitimacy is somewhat useful as a template for the justification of rules but overly rigid and ultimately unworkable as a genetic requirement for legitimate rules. In other words, a rule is legitimate if it could have been enacted by an ideally democratic and rational lawmaker. Who is in a position to make that judgment, whether a (pre-existing) rule is sufficiently reasonable to be incorporated in the fabric of the law? Most legal systems have entrusted judges with that role, and considering the alternatives, that seems like a reasonable choice. And what is the standard of reason that judges will apply to determine whether an old rule should live on? Ultimately constitutional standards, which are, or so any system requires its practitioners to presume, sufficiently legitimate. (Of course, few constitutions could trace their legitimacy back to acceptable standards of democratic enactment.)

Where does that leave us? The chain novel concept is useful as a metaphor, as a reminder of the constraints that a legal system imposes on those who choose to participate in its discourse. Every actor in the legal system can only communicate what can be communicated within the legal system. Legitimacy, or rather validity, is an attribute of most (not all) legal communications and it is passed on from one legal communication to another. Democracy is one of the sources that, if properly invoked, attach validity to legal communications. Court decisions are an alternative source. Both democracy and court decisions may lose their validity-conferring powers, for example, through exclusion or corruption. But I don’t think that the chain novel metaphor solves the problem of legitimacy; it does not serve as an independent source of legitimacy for judicial decisions.

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