The political origins of english private law

Journal of Law and Society

Volumn 40, Issue 4, 2013, Pages 481-508

  Priel, Dan ^a  

^a YORK UNIVERSITY   (Canada)

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EID: 84887323596     PISSN: 0263323X     EISSN: 14676478     Source Type: Journal    
DOI: 10.1111/j.1467-6478.2013.00638.x     Document Type: Article

References (124)

1. See J.W.F. Allison, A Continental Distinction in the Common Law: A Historical and Comparative Perspective on English Common Law (1996) 7-8
2. Allison further contends that the categorical' approach that the division between public and private law is only part of, is alien to the common law (pp. 122-4
3. Here too, we see an interesting development as the categorical or taxonomical approach has been at the heart of the emerging private law (see n. 9 below).
4. A.V. Dicey, Lectures Introductory to the Study of the Constitution (1885) 177-8
5. J.D.B. Mitchell, The Causes and Effects of the Absence of a System of Public Law in the United Kingdom' [1965] Public Law 95
6. Davy v. Spelthorne Borough Council [1984] A.C. 262, 276 (Lord Wilberforce, dissenting).
7. Grouping these different scholars together should not be taken to mean that there are no important differences among them. (I discuss some of these differences in sections IV and V below.) Despite these differences, they share a commitment to the conceptual distinction between public and private law.
8. P. Birks, Rights, Wrongs, and Remedies' (2000) 20 Oxford J. of Legal Studies 1, at 37
9. P. Birks, Introduction' in English Private Law, ed. P. Birks (2000) 35, at xxxvi
10. J. Dietrich, What Is Lawyering''? The Challenge of Taxonomy' (2006) 65 Cambridge Law J. 549
11. C. Webb, Treating Like Cases Alike: Principle and Classification in Private Law' in The Goals of Private Law, eds. A. Robertson and T.H. Wu (2009) 215
12. S. Waddams, Classification of Private Law in Relation to Historical Evidence: Description, Prescription, and Conceptual Analysis' (2004) 6 Current Legal Issues 265
13. While they have shown how one needs a perspective from which to conduct a taxonomical exercise, what they have not shown is how the felt need for taxonomy, and the most basic taxonomical division - between public and private law - are themselves products of the political structure in which English law operates. American law, for example, where pressures were very different, accords much less place for the public law/private law divide. There, well- known critiques of the divide have been made as early as the 1920s and have had lasting staying power
14. M.R. Cohen, Property and Sovereignty' (1927) 13 Cornell Law Rev. 8
15. R.L. Hale, Coercion and Distribution in a Supposedly Non- Coercive State' (1923) 38 Politcal Science Q. 470
16. G. Calabresi, A Common Law for the Age of Statutes (1982)
17. See P. Harling, The Modern British State: An Historical Introduction (2001
18. J. Harris, Private Lives, Public Spirit: Britain 1870-1914 (1993) 197-200
19. Interestingly, both Harling (at p. 73
20. Harris (at p. 184) Stress a model of (respectively) a disinterested state' or a neutral, passive, almost apolitical state' as the hallmark of the Victorian state, a model reproduced in Private Lawyers' conception of private law (see text to n. 92 below).
21. A.V. Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (1914, 2nd edn.) 61
22. On the extent to which Dicey's reading of the English constitution was a product of his political commitments
23. B.J. Hibbits, The Politics of Principle: Albert Venn Dicey and the Rule of Law' (1994) 23 Anglo-American Law Rev. 1
24. W.I. Jennings, In Praise of Dicey: 1885-1935' (1935) 13 Public Administration 123-128
25. A.V. Dicey, The Legal Boundaries of Liberty' (1868) 13 Fortnightly Rev.
26. A.V. Dicey, Introduction to the Study of the Law of the Constitution (1915, 37
27. A.V. Dicey, Lectures Introductory to the Study of the Law of the Constitution (1885) 216
28. H.A. Tulloch, Changing British Attitudes towards the United States in the 1880' (1977) 20 Historical J. 825, at 837-8
29. A.V. Dicey, The Development of Administrative Law in England' (1915) 31 Law Q. Rev. 148-149
30. Others were less sanguine than him, expressing concern about the creation of new tribunals outside the ordinary court system
31. W.J.L. Ambrose, The New Judiciary' (1910) 26 Law Q. Rev. 203
32. which saw with alarm the fact that administrative bodies have been given what were essentially judicial powers. This view was then trumpeted with much greater fanfare in Lord Hewart, The New Despotism (1929).
33. Around the same time Dicey published his lectures at Oxford, Maitland lectured to his students in Cambridge that England had administrative law since the great Reform Act.
34. F.W. Maitland, The Constitutional History of England (1908) 504-6
35. (Based on lectures delivered in 1887-88). Others suggest the real change took place with the reforms of the Liberal governments in the first decades of the twentieth century
36. W.H. Greenleaf, The British Political Tradition, Vol. 3 (1987) 600-1
37. B. Baylin, The Ideological Origins of the American Revolution (1992, rev. edn.) 198-202
38. J.W. Gough, Fundamental Law in English Constitutional History (1961
39. C.K. Allen, Bureaucracy Triumphant (1931).
40. Taylor v. Brighton Borough Council [1947] K.B. 736, 739 (CA). 37 D. Oliver, What, If Any, Public-Private Divide Exists in English Law?' in The Public-Private Law Divide: Potential for Transformation
41. M. Ruffert (2009) 1, at 3-5
42. N.W. Barber, Professor Loughlin's Idea of Private Law' (2005) 25 Oxford J. of Legal Studies 157-166
43. M. Taggart, The Peculiarities of the English'': Resisting the Public/Private Law Distinction' in Law and Administration in Europe: Essays in Honour of Carol Harlow, eds. P. Craig and R. Rawlings (2003) 107, at 110-11
44. N. Bamforth, The Public Law-Private Law Distinction: A Comparative and Philosophical Approach' in Administrative Law Facing the Future: Old Constraints and New Horizons, eds. P. Leyland and T. Woods (1997) 136, at 140-1
45. Corresponding to the conceptual distinctness of private law, Birks asserted, in a statement that would surprise many public lawyers, that few lawyers would deny that administrative law has a unity and an internal anatomy of its own' P. Birks, An Introduction to the Law of Restitution (1989, rev. edn.) 3.
46. M. McInnes, Resisting Temptations to Justice''' in The Philosophical Foundations of the Law of Unjust Enrichment, eds. R. Chambers et al. (2009) 100-101
47. N.J. McBride, Rights and the Basis of Tort Law' in Rights in Private Law, eds. D. Nolan and A. Robertson (2011) 331-332
48. Additional examples of this attitude are found in text accompanying nn. 43-44 below.
49. P. Birks, Equity in the Modern Law: An Exercise in Taxonomy' (1996) 26 University of Western Australia Law Rev.
50. (The [legal] realists and post-realists have a strong hand'). In the United States, due to a different political tradition and a stronger influence of legal realism, the solution was quite different: compare D. Priel, Is There One Right Answer to the Question of the Nature of Law?' in The Philosophical Foundations of the Nature of Law, eds.
51. W. Waluchow and S. Sciaraffa (2012) 322.
52. N.J. McBride and R. Bagshaw, Tort Law (2012
53. A. Burrows, The Australian Law of Restitution: Has the High Court Lost Its Way?' in Exploring Private Law, eds. E. Bant and M. Harding (2010) 67, at 70-1
54. See P. Birks, Mistakes of Law' (2000) 53 Current Legal Problems 205, at 217-18
55. Lord Reid, The Judge as Law Maker' (1972) 12 J. of the Society of Public Teachers of Law 22
56. K. Diplock, The Courts as Legislators (1965
57. Lord Devlin, Judges as Lawmakers' (1964) 72 Listener 261
58. T. Bingham, The Judge as Lawmaker: An English Perspective' in The Business of Judging: Selected Essays and Speeches 1985-1999 (2000) 25
59. compare Lord Radcliffe, Law and Its Compass (1960) 39
60. T. Hobbes, A Dialogue between a Philosopher and a Student, of the Common Laws of England' in Writings on Common Law and Hereditary Right
61. A. Cromartie and Q. Skinner (2005) 10
62. Here and elsewhere Hobbes makes it clear that he is talking not just of statute law, but generally of Law', and that his target is Edward Coke.
63. See, generally, M.J. Detmold, Law as Practical Reason' (1989) 48 Cambridge Law J. 436
64. N.J. McBride and P. McGrath, The Nature of Restitution' (1995) 15 Oxford J. of Legal Studies 33-33
65. P. Birks, Three Kinds of Objection to Discretionary Remedialism' (2000) 29 University of Western Australia Law Rev. 1-16
66. A. Burrows, Understanding the Law of Obligations (1999) 122
67. A. Beever, Rediscovering the Law of Negligence (2007) 8.
68. A. Burrows, The Law of Restitution (2011
69. R. Stevens, Torts and Rights (2007) 309 (our rights should not be decided, or altered, according to a judge's personal assessment of the balance of a basket of policy concerns').
70. Compare Blackburn, Low & Co. v. Vigors (1886) 17 Q.B.D. 553, 558: every general proposition laid down by judges, as a principle of law, as distinguished from an enactment by statute, is the statement of some ethical principle of rights and wrong applied to circumstances arising in real life' (emphasis added).
71. P. Cane, Rights in Private Law' in Rights and Private Law, eds. D. Nolan and A. Roberston (2012) 35, at 54-5
72. See W. Blackstone, Commentaries on the Laws of England, Vol 1. (1765) 67 [68
73. I offer here one reading of Blackstone, which I find convincing, but acknowledge that there are other, more rationalistic' interpretations of his work
74. D. Priel, Book Review' (2007) 57
75. J. of Legal Education 579, at 588-9
76. This disagreement bears little on the point I make in the text as the argument has its modern defenders, for example
77. A. Kramer, Proximity as Principles: Directness, Community Norms and the Tort of Negligence' (2003) 11 Tort Law Rev. 70-73
78. P. Birks, Adjudication and Interpretation in the Common Law: A Century of Change' (1994) 14 Legal Studies 156, at 174-5
79. Prohibitions del Roy (1607) 77 E.R. 1342, 1343.
80. P. Birks, Unjust Enrichment (2005, 2nd edn.) 275.
81. See A.A. Paterson, Judges: A Political Ea lite' (1974) 1 Brit. J. of Law and Society 118, at 120-6
82. Malone v. Metropolitan Police Commissioner Q.B. 49, 63.1980
83. Compare the approach in civil law jurisdictions where analogizing from legislation is standard practice
84. R.S. Summers and M. Taruffo, Interpretation and Comparative Analysis' in Interpreting Statutes: A Comparative Study, D.N. MacCormick and R.S. Summers (1991) 461-471.
85. J.M. Landis, Statutes and the Sources of Law' (1965 [first published 1934]) 2 Harvard J. on Legislation 7, at 25
86. (Experts legislative draftsmen are commonly attached to legislatures. If it be true that law reflects and should reflect experience rather than logic, legislation born of such an urge demands careful and sympathetic consideration.') with Lord Radcliffe, Law and the Democratic State' 52 Brief 1, at 7 (expressing concern that the political system, especially when governed by two parties, will result in a system of law, [that] bears an [un]recognisable relation to those ideas of equity and wisdom which most men would wish to see imprinted on the fabric of society').1956
87. R. Stevens, The English Judges: Their Role in the Changing Constitution (200531-3, 42-3
88. Scruttons Ltd. v. Midland Silicones Ltd. [1962] 446, 467-68
89. Magor and St Mellons Rural District Council v. Newport Corp [1952] A.C. 189-191
90. Jain v. Trent Strategic Health Authority [2009] UKHL 4 [2009] 1 A.C. 853.
91. A. Beever, Policy in Private Law: An Admission of Failure' (2006) 25 University of Queensland Law J. 287
92. E.J. Weinrib, Corrective Justice (2012) 69-72
93. C. Witting, Duty of Care: An Analytical Approach' (2005) 25 Oxford J. of Legal Studies 33, at 39-42
94. See L.L. Fuller, The Forms and Limits of Adjudication' (1978) 92 Harvard Law Rev. 353
95. See Ashby v. White (1703) 2 Ld. Raym. 938 (Q.B.), and especially Chief Justice Holt's dissent that influenced the vote in the House of Lords (reported in 3 Ld. Raym. 320) and which was followed by later courts. Central to Holt's dissent was the idea that a violation of a right (whatever its source) gives rise to remedy
96. 2 Ld. Raym. at 953
97. It was the later-rejected majority opinions at Queen's Bench that emphasized the distinction between public and private right (pp. 942-49
98. East Suffolk Rivers Catchment Board v. Kent [1941] A.C. 74, 88-91 (Lord Atkin, dissenting).
99. N.J. McBride, Duties of Care - Do They Really Exist?' (2004) 24 Oxford J. of Legal Studies 417, at 439-40
100. See M. Reimann, Nineteenth Century German Legal Science' (1990) 31 Boston College Law Rev. 837-857
101. [Savigny] focused almost exclusively on private law while he excluded constitutional, administrative and other public law as a concern of politics, not legal science')
102. They did so by echoing what has been described as Dicey's signal achievement, the association of Englishness with the common law and with values of social detachment and personal autonomy
103. J. Stapleton, Dicey and His Legacy' (1995) 16 History of Political Thought 234, at 255-6
104. S. Collini, Public Moralists: Political Thought and Intellectual Life in Britain, 1850-1930 (1991) 287
105. E.J. Weinrib, The Idea of Private Law (1995) 76-80
106. E.J. Weinrib, The Special Morality of Tort Law' (1989) 34 McGill Law J. 403-409
107. Lord Hoffmann, Reforming the Law of Public Authorities Negligence',http:// www.barcouncil.org.uk/media/100362/lord_hoffmann_s_transcript_171109.pdf
108. In his appearance before the Law Commission, Stevens is reported to have expressed the same view
109. Law Commission, Administrative Redress: Public Bodies and the Citizen (2010)
110. P.B.H. Birks, More Logic and Less Experience: The Difference between Scots Law and English Law' in The Civilian Tradition and Scots Law
111. D.L. Carey Miller and R. Zimmermann (1997) 167-189
112. T.H. Ford, Dicey as a Political Journalist' (1970) 18 Political Studies 220-226
113. P. Birks, Book Review' (2003) 119 Law Q. Rev. 156-59
114. R. Stevens, Torts' in The Judicial House of Lords 1876-2009, eds. L. Blom-Cooper et al. (2010) 629, at 651-2
115. R. Bagshaw, The Duties of Care of Emergency Service Providers' [1999] Lloyd's Maritime and Commercial Law Q. 71-71
116. Reeves v. Commissioner of Police of the Metropolis [2000] 1 A.C. 360-368
117. It is the sentiment found in Samuel Smiles, Self-Help (1860, new edn.) 5, where he spoke of this strong individualism which makes and keeps the Englishman really free, and brings out fully the action of the social body'.
118. Tomlinson v. Congleton Borough Council [2003] UKHL 47, [2004] A.C. 46
119. That this is not the only possible way of thinking about the common law can be seen from the Court of Appeal decision, [2003] 2 W.L.R. 1120, as well as from the views, on and off the bench, of Lord Bingham. See, in particular, The Uses of Tort Law' (2010) 1 J. of European Tort Law 3, and his dissent in Van Colle v. Chief Constable of the Hertfordshire Police [2008] UKHL 50, [2009] 1 A.C. 225.
120. See the sources cited in n. 82 above.
121. F.A. Hayek, The Mirage of Social Justice (1977) 31 (talking about a private law society' as what makes an Open Society possible')
122. R.A. Epstein, Simple Rules for a Complex World (1995
123. R. Nozick, Anarchy, State and Utopia (1974) ch. 7
124. The clearest exponent of this view in the history of English law is probably Baron Bramwell.