The Humanity of Private Law

Part I: Explanation

Nicholas McBride

• Editorial: Hart Publishing
• Año: 2018
• ISBN:
  9781509911967
• Edición: 1
• Categoría: Law
• Categoría: Contract Law

The Humanity of Private Law presents a new way of thinking about English private law. Making a decisive break from earlier views of private law, which saw private law as concerned with wealth-maximisation or preserving relationships of mutual independence between its subjects, the author argues that English private law's core concern is the flourishing of its subjects. THIS VOLUME
- presents a critique of alternative explanations of private law;
- defines and sets out the key building blocks of private law;
- sets out the vision of human flourishing (the RP) that English private law has in mind in seeking to promote its subjects' flourishing;
- shows how various features of English private law are fine-tuned to ensure that its subjects enjoy a flourishing existence, according to the vision of human flourishing provided by the RP;
- explains how other features of English private law are designed to preserve private law's legitimacy while it pursues its core concern of promoting human flourishing;
- defends the view of English private law presented here against arguments that it does not adequately fit the rules and doctrines of private law, or that it is implausible to think that English private law is concerned with promoting human flourishing. A follow-up volume will question whether the RP is correct as an account of what human flourishing involves, and consider what private law would look like if it sought to give effect to a more authentic vision of human flourishing. The Humanity of Private Law is essential reading for students, academics and judges who are interested in understanding private law in common law jurisdictions, and for anyone interested in the nature and significance of human flourishing.

1

Introduction

Delivered in a more self-confident age, Richard O’Sullivan KC’s 1950 Hamlyn Lectures on The Inheritance of the Common Law begin with the ringing declaration that ‘The Common Law of England is one of the great civilising forces in the world.’ In this book, I want to explore whether he was right – at least so far as English private law is concerned.¹

It must be admitted that the prospects of vindicating O’Sullivan’s faith in the common law do not look good. At the level of both doctrine and theory, it might be thought easier to write a book entitled The Inhumanity of Private Law. In Section 1 of this introduction, I will set out five tough² cases that make it hard for us to think of private law as seriously concerned with promoting the welfare of its subjects. In Section 2, I will set out three currently popular explanations of private law – economic, Kantian, and moralistic – and argue that if any of these explanations are correct, then we cannot say that private law achieves anything that is of real value to those who are subject to it.

Having set out the obstacles in the way of thinking of private law as humanistic in its goals and aspirations, I turn in Section 3 to see what can be said in favour of a humane view of private law, which I will call ‘F’ for short. According to F: (1) private law is pervaded by a concern to promote the flourishing of all its subjects as human beings, (2) the particular conception of what amounts to human flourishing that underlies private law is a very familiar conception that I will call the ‘R-picture’, or the ‘RP’ for short, and (3) in trying to promote human flourishing, private law is constrained by the need to maintain its legitimacy. (3) results in private law doing both more and less than we would expect it to do if just (1) and (2) were true.

The rest of this volume is devoted to substantiating the claims that F makes about private law. But doing this only amounts to Part I of my exploration of the links between private law and human flourishing. Section 4 introduces Part II of the project, which will be published in a second, forthcoming, volume. Part II mounts a critique of English private law off the back of the claims made about private law by F. I will argue in Part II that the RP is wrong as an account of human flourishing and that a private law based on an authentic vision of human flourishing will look very different from the private law we have now. If this is right then we cannot endorse O’Sullivan’s paean in favour of the common law. The best we can say is that private law is a noble failure – it aspires to promote human flourishing, but is betrayed in that aspiration by its failure to understand what authentic human flourishing involves.

1.Five Tough Cases

Here are five tough cases that seem to bring into immediate question whether we can say that private law is interested in promoting or protecting genuine human needs and interests.

Nettleship v Weston³

Lavinia Weston asked a friend of hers, Eric Nettleship, to give her some driving lessons in her husband’s car. In the third lesson, Weston crashed the car: she failed properly to drive the car round a corner with the result that it mounted the pavement and hit a lamppost. Nettleship’s left knee cap was broken in the collision. Nettleship sued Weston for damages, in negligence. It was acknowledged that Weston had owed Nettleship a duty of care in driving the car. The real issue was whether she breached that duty of care. At first instance, Thesiger J found that Weston had not breached the duty of care she owed Nettleship: inexperienced as she was at driving, it would be unfair to require her to take the same level of care in driving as a fully qualified driver would. Instead, all she was required to do was do her best to avoid injuring Nettleship, and Weston had done her best in the circumstances.

The Court of Appeal reversed Thesiger J’s decision and held Weston liable in negligence. The duty of care that Weston owed Nettleship, the Court held, was a duty to:

[D]rive in as good a manner as a driver of skill, experience and care, who is sound in wind and limb, who makes no errors of judgment, has good eyesight and hearing, and is free from any infirmity …⁴

The reality was ‘The learner driver may be doing his best, but his incompetent best is not good enough’.⁵ Nor was it relevant that holding Weston to such a demanding standard of care – one which she may have been incapable of living up to – might result in the attribution of ‘tortious liability to one who may not be morally blameworthy. For tortious liability has in many cases ceased to be based on moral blameworthiness.’⁶

The duty of care that Weston owed Nettleship was a strict duty – in John Gardner’s happy terminology, a ‘duty to succeed’ in doing something (here, driving with the sort of care a reasonable, experienced driver would show in driving a car) rather than a ‘duty to try’ to do something.⁷ Duties to succeed are very common in contract law – understandably so, as contracting parties are usually only interested in buying the assurance of success, rather than someone’s best endeavours. However, as Nettleship v Weston shows, the courts also seem willing to impose such duties on people who have not voluntarily assumed them.

Other examples of imposed duties to succeed that exist in private law are (1) the duty not to publish to a third party a statement that is liable to cause unjustified damage to another’s reputation; and (2) the duty not to convert property when that property is in another’s possession or when someone else has an immediate right to possess that property. Both of these duties, being duties to succeed in achieving a particular outcome, can be breached despite a defendant’s making every effort to avoid breaching them.

Many people think that imposed duties to succeed are unreasonable. If you have voluntarily assumed such a duty, then it is your lookout if you end up breaching it; but for the courts to foist such a duty on someone and then hold them liable should they happen to breach it seems to amount to legalised theft, particularly if the person in question suffers from some incapacity that means they are unlikely to succeed in doing whatever the courts are requiring them to succeed in doing. John Gardner disagrees. He argues that avoiding breaching an imposed duty to succeed is often very straightforward:

[F]or the most part strict liability for φing^[8] exists … only where the φing takes place in the course of some specified activity or relationship – call it ψing.^[9] And in general … ψing is an activity or relationship that one cannot but know one is engaged in, and moreover that one could (with enough effort) avoid getting into. So for the most part the law … provide[s] an assurance of no liability to potential defendants … if they are willing to use it. Want to avoid strict liability for injuring people with your blasting operation? Fine: just don’t go into the blasting business. Want to avoid strict liability for flooding your neighbour’s land. Fine: just don’t transport water onto your land … More generally, want to avoid strict liability for φing in the course of your ψing? Fine: just don’t start ψing.¹⁰

However, this argument seems cruel where an individual is (for good reason) unable to contemplate not ψing – as is the case with learning to drive. It also seems hypocritical where society’s vital interests depend on people’s ψing – as is the case in all of the examples given by Gardner, and in the case of other examples of ψing that attract duties to succeed such as publishing newspapers, and dealing in property. There seems something wrong in society’s egging people on to do ψ, and then arguing that it is perfectly legitimate to attach duties to succeed to the doing of ψ on the ground that breach of those duties can easily be avoided by the simple expedient of not doing ψ.

So Gardner does not succeed (no pun intended) in acquitting imposed duties to succeed of being unreasonable – where they exist in the current law, they expose people to risks of liability that can only be reliably avoided by refusing to engage in activities that people, for all intents and purposes, have to engage in or that society as a whole wants them to engage in. The existence of imposed duties to succeed in private law therefore seems to be a major blot on its record.

Four More

(1) Michael v Chief Constable of South Wales Police.¹¹ Joanna Michael was stabbed to death by her ex-partner, a man named Cyron Williams. Williams had discovered Joanna in bed with another man, assaulted her, taken the man away to take him home, and told her he would be coming back to give her another beating. Joanna called the police. The phone operator who picked up the call – a Ms Mason – alerted the police in Joanna’s area, but failed to mention the fact that Joanna was in fear for her life. The result was that Joanna’s call was graded as a ‘Grade 2’ call, requiring a police response within an hour, rather than the more appropriate ‘Grade 1’, requiring the police to turn up immediately at Michael’s house. By the time the police reached Joanna’s house, she was dead, killed by Williams.

The UK Supreme Court (here, and in the rest of the book, ‘UKSC’) held that the police had not owed Joanna a duty of care to come to her assistance. In so ruling, the UKSC reaffirmed the traditional rule – that applies to private persons and public bodies alike, without distinction – that absent special circumstances, such as where the defendant has put the claimant in danger,¹² or has ‘assumed a responsibility’ to the claimant for their welfare,¹³ a defendant will not owe a claimant a duty of care to take positive steps to save them from harm, no matter how much danger the claimant is in or how well-placed the defendant is to save them from that danger. As a result of the UKSC’s decision, the law of negligence effectively takes the view that people like Joanna Michael are not entitled to receive decent treatment from the emergency services. Instead, as David Howarth acutely points out, such treatment is regarded as a ‘gift’¹⁴ from the State to people in need like Joanna – should the gift be withheld, as it was in Michael, the person who failed to receive it can have no grounds for complaint.

(2) Combe v Combe.¹⁵ The Combes got married during World War I and separated just before World War II broke out. Mrs Combe made a petition for a divorce in 1943, and she was granted a decree nisi (a decree that the marriage would be dissolved on a certain date unless – nisi – someone showed good cause why it should not be). Mrs Combe – who was actually somewhat better off than her very soon to be ex-husband – never went to court for an order that her husband pay her maintenance because after the decree nisi was granted, he promised to pay her £100 a year (about £4,000 a year in today’s money) maintenance. In fact, he never paid her a penny despite Mrs Combe’s repeated attempts to get him to pay. After seven years she went to court to ask the courts to enforce Mr Combe’s promise.

The Court of Appeal dismissed Mrs Combe’s case. Mr Combe’s promise was not contractually binding because she had not paid Mr Combe anything – any consideration – for his promise. Mrs Combe argued that the Court could still find that the promise was binding under the law on promissory estoppel, which Denning J had held in the High Trees case had the effect of ensuring that ‘a promise intended to be binding, intended to be acted on and in fact acted on, is binding so far as its terms properly apply.’¹⁶ Denning LJ – having been promoted to the Court of Appeal – ruled that the law on promissory estoppel did not go as far as Mrs Combe wanted it to go: ‘the principle stated in the High Trees case … does not create new causes of action where none existed before. It only prevents a party from insisting on his strict legal rights, when it would be unjust to allow him to enforce them …’.¹⁷ To extend this principle to Mrs Combe’s case would result in the doctrine of consideration – that promises not made in a deed are only contractually binding if something has been given in return for them – being ‘overthrown by a side-wind.’¹⁸

The result was, first, that Mrs Combe had no remedy for the breach of Mr Combe’s promise, despite her relying on that promise. Second, an odd distinction became entrenched in English law: a gratuitous promise not to sue someone for money may be binding if it has been relied on, while a gratuitous ...