Private Law in Theory and Practice

Michael Bryan

• Publisher: Routledge-Cavendish
• Year: 2007
• eBook ISBN: 9781135391805
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho contractual

Private Law in Theory and Practice explores important theoretical issues in tort law, the law of contract and the law of unjust enrichment and relates the theory to judicial decision-making in these areas of private law. Topics covered include the politics and philosophy of tort law reform, the role of good faith in contract law, comparative perspectives on setting aside contracts for mistake and the theory and practice of proprietary remedies in the law of unjust enrichment.

Contributors to the book bring a variety of theoretical approaches to bear on the analysis of private law. They include: economic analysis, corrective justice theory, comparative analysis of law, socio-legal inquiry, social history, political theory as well as doctrinal analysis of the law. In all cases the theoretical approaches are applied to recent case law developments in England, Australia and Canada, or, in the case of tort law, proposals in all these jurisdictions to reform the law.

The book presents the theory of private law and the application of theory to practical legal problems in an accessible form to teachers and students of tort, contract and the law of unjust enrichment, legal researchers and law reformers.

Part I
Principle and policy

Chapter 1

Private right and public interest

Stephen Waddams

It is common for writers to relate legal concepts to each other in terms of such metaphors as maps and organisational or taxonomic schemes. Distinctions are drawn among contract, tort, and unjust enrichment, and between obligations and property, and, at a higher level of generality, between private rights and public policy. These distinctions are then commonly depicted as distinct areas on a map, or as separate classes, orders, genera, and species in a taxonomic scheme. Metaphors may illuminate a complex subject, but any metaphor, if pressed too far, is apt to distort. The ideas of mapping and taxonomy in law owe their attraction partly to their indeterminacy and variability. Mapping, as applied to law, is not a single metaphor, but multiple metaphors: the idea of a political map is not the same metaphor as the idea of a map of physical geography, and the idea of an urban map differs from the idea of a global map of seas and continents. Any set of ideas may claim its map, but different writers have used the word in different ways. Blackstone spoke of a map,¹ and his map (rights of persons, rights of things, private wrongs, public wrongs) was useful for his purpose but plainly did not seek to set out mutually exclusive categories. Many private law obligations might fall simultaneously into all of his first three books. Modern writers, by contrast, have often envisaged a map that separates obligations rather as a map of physical geography separates places (Ottawa is in Canada, and therefore not in Europe) or as a taxonomical scheme separates biological specimens (an animal is either an insect or a mammal, but cannot be both).

Some maps and taxonomic schemes claim, expressly or by implication, to be descriptive of the past. In that case the accuracy of the map or scheme can be assessed by historical evidence, as a geographical map may be compared with the terrain it depicts, or a taxonomic scheme may be tested by whether it includes all known specimens; in case of discrepancy, of course, it must be the map or scheme, not the terrain or collection of specimens, that is amended.

Actual assertions about the past should be tested and if they turn out to be false, should be contradicted. So, if it were asserted that every legal obligation has been derived from one only of three or four discrete concepts, this assertion could be contradicted by evidence that some legal obligations have been derived from the concurrent and cumulative operation of several concepts. It is true of many rules of private law that they have not been derived exclusively from a single concept. The law of vicarious liability cannot be derived entirely from the concept of fault, nor can the law of agency be derived entirely from the idea of consent, and so a map or scheme with fault, consent, and unjust enrichment as primary and mutually exclusive categories would not accurately describe the past. If it were sought to marginalise the non-conforming cases by suggesting that instances of vicarious liability and agency had been infrequent or of small importance, the criteria of frequency and importance should be demanded: if testable, the assertions should be tested by historical evidence, and if untestable, this should be pointed out. A statement that could not be falsified by historical evidence might be valid, but it would not be a statement about the past.

Alternatively a map or scheme might depict an ideal. A writer might propose that for reasons (for example) of ethics, utility, logic, elegance or of conformity with a philosophical or political system, or with another legal system (ancient or modern), every legal obligation should be derived from one only of three or four discrete concepts. This would be a quite different undertaking. It could not, of course, be refuted by historical evidence, but then neither could it be supported by such evidence. To vindicate such a proposal it would be necessary to identify the rules of existing law that would be altered by it, and to persuade the reader of the superior virtue of the value underlying the proposed scheme (ethics, utility, logic, elegance, etc.). If the rules in question were of long standing and answered to an instinctive sense of fairness or convenience this would be a difficult task – to abolish vicarious liability and the law of agency for the sake of elegance would imply a very high view of elegance as an unqualified and overriding human good – but if the argument succeeded, a persuasive case for reform would have been made out.

Each of these two approaches has been common in legal discourse, and each is valuable, but what is undesirable (I would suggest) is to run them together, using the proposed map or scheme to eliminate or marginalise inconsistent features of the past, and then using the past, so pruned, as evidence in support of the map or scheme. Such an approach tends to assume what is sought to be proved; it confuses description of the past with prescription for the future; it produces assertions about the past that cannot be falsified (or tested) because contradictory evidence is automatically marginalised; and it produces prescriptions for the future that cannot be evaluated because neither the extent to which the law is to be changed nor the underlying reason for making the change is made explicit.

The conclusion I would draw is not that maps and taxonomic schemes are useless, nor that better maps and schemes are needed, but that the metaphors of mapping and taxonomy should not be pressed too far. If we wish to understand Rouen Cathedral (to adopt Calabresi’s well-known metaphor, ‘one view of the cathedral’)² we need more views or perspectives, not just a better ground plan, or a catalogue of building materials.

Quite frequently propositions about law combine (by a kind of rhetorical slippage) historical and non-historical assertions, and tend to slide from one to the other: the natural meaning of words suggests the conclusion desired by the writer; with the accompanying suggestions that the law (past, present, and future; here and everywhere) generally conforms, has conformed, should conform, and, properly understood, must conform, with the writer’s view. Taken in the mass, this mixture of ideas makes the proposition unfalsifiable, and therefore untestable, because any potentially contradictory evidence will automatically have been marginalised as exceptional, anomalous, and unprincipled. If the proposition is to be tested, historical and non-historical propositions must be disentangled, for different tests are appropriate to each.

Put like this, these points seem almost too obvious to be worth making, as non-lawyers – both historians and philosophers – usually tell me when I try to explain it to them. Yet I think that most lawyers will recognise the kind of slippage I have described. I will go further and say that most of us have been guilty of it ourselves, lawyers being particularly susceptible because of the conventions of judicial reasoning (and therefore of forensic argument and of academic commentary) that seek to anchor every innovation in the past. The phenomenon has been pervasive in legal argument, and by no means confined to any particular view of law. Intellectual order in law is desirable, but it is not assisted by misunderstanding the past. The law is an actual social phenomenon with a history that cannot be reconstructed in an academic’s study or in a judge’s chambers. Let us by all means seek intellectually satisfying justifications for legal results, but let it be on the basis of an accurate understanding of past law. Wishful thinking about the future may be a virtue; wishful thinking about the past is not: it leads to bad history and to the distortion of judgment. In pointing this out I hope it is clear that I am seeking to contribute to, not to disparage, good intellectual order in the law. Good history is never at odds with good intellectual order.

Some have suggested that, since no one could disagree with these propositions, the danger I point to is not real. I have said that most lawyers will recognise the kind of slippage I have described but for those who do not, I would refer (by way of illustration) to a recent (2001) statement by the Supreme Court of Canada on vicarious liability:

In general tort law attempts to hold persons accountable for their wrongful acts and omissions and the direct harm that flows from those wrongs. Vicarious liability, by contrast, is considered to be a species of strict liability because it requires no proof of personal wrongdoing on the part of the person who is subject to it. As such, it is still relatively uncommon in Canadian tort law.³

This passage, not of great significance in itself, will serve to illustrate the phenomenon to which I seek to draw attention. Throughout the twentieth century, instances of vicarious liability have not been ‘relatively uncommon’: by any measure, they have been very frequent. No one knows this better than the judges of the Supreme Court of Canada who made the statement just quoted. How is it then that they appear to have asserted the contrary? The answer lies in a slippage, common in legal writing, between conceptual and historical propositions.⁴ A variety of words and phrases have tended to blur the distinction. Thus it may be said that instances of liability without fault are ‘exceptional’, ‘anomalous’, ‘insignificant’, ‘marginal’, ‘unusual’, ‘islands’, ‘pockets’, ‘outliers’, ‘outside the mainstream’, ‘abnormal’, ‘deviant’, ‘departing from the norm’, ‘aberrant’, or repugnant to a ‘normative’ view of the question – expressions that tend to blur the distinction between conceptual and historical – and, from this it is deduced that therefore in the past such instances must actually have been rare, a proposition that, without being tested historically, in its turn is then implicitly deployed in support of the underlying idea: that liability must depend on fault. Writers who make such statements may quite properly say that they are meant to be conceptual, not historical, but if the distinction is not emphasised, there is a danger (illustrated by the passage just quoted) that confusion of the conceptual with the historical may lead to erroneous conclusions about the past. There is a real danger of serious confusion of thought: there are, no doubt, several cogent arguments that might be made against vicarious liability, but the proposition that it has been relatively uncommon is not one of them.

The sequence of thought just mentioned is closely linked with questions of categorisation and classification, the underlying assumption being that all liability that does not fall into some other recognised category must depend on wrongdoing. Even brief attention to the actual history of Anglo-American law shows that, as a description of the past, such a scheme tends towards oversimplification: the relation of legal concepts to each other, as they have operated in practice, is not exactly captured by a two-dimensional diagram.

The topic of our attention is the relation between principle and policy in private law. Peter Cane has observed that ‘the word “policy” is one of the most under-analysed terms in the modern legal lexicon’.⁵ I agree, and would suggest that there is much uncertainty also in the meaning of the word ‘principle’. There is never a single agreed principle that applies to a controversial legal question; principles may be stated and restated at an infinite number of levels of generality; often principles conflict with each other; any legal rule, as Hart pointed out, may be called a principle.⁶ As with other legal ideas the meaning of the word varies according to what is contrasted: for example, ‘pr...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• List of Contributors
• Introduction
• Part I Principle and Policy
• Part II Tort Law Policy
• Part III Issues in Contract Law
• Part IV Certainty and Discretion in Property, Equity and Unjust Enrichment