The Goals of Private Law
Edited by Andrew Robertson & Tang Hang Wu
published by Hart Publishing, Oxford & Portland, Oregon, 2009
“ What modern British and Canadian legal philosophy regarding private law is up to right now; its personalities, theories, ideas and sources.”
This book is a collection of twenty papers originally presented at a conference held at the National University of Singapore in 2008. The authors are principally British and Canadian with two from the United States (one of whom used to teach at a Canadian law school), two from Singapore, two from Australia and one from Israel.
The principal focus of the papers is on the law of torts and restitution, though some of the papers discuss private law more generally. As a survey of what is going on in current academic writing, the book is both comprehensive and useful. It would, for example, be a very good source for the principal books, papers and ideas that are the focus of current academic research in the common law, excluding, however, the United States.
Criticism of or comments on the views of Ernest Weinrib from the University of Toronto, who argues in The Idea of Private Law that corrective justice is the foundation of private law, and the late Peter Birks of Oxford University who sought in An Introduction to the Law of Restitution and in Unjust Enrichment, (both editions) to find a unified concept for the law of restitution and to reorganize private law, or at least the law of obligations as he would call it, around Romanist categories, could have been offered as a sub-title. The significance of Weinrib and Birks is that they seek (and sought) to establish private law scholarship on conceptual foundations that are based on the internal elucidation of the basic concepts of private law, principally contracts and torts, rather than criteria that are external to them. External criteria would include economic efficiency or wealth maximization, and any instrumentalist view of private law. These issues appear in several of the papers.
As a picture of what the “academy” is focused on when it looks at private law, the book provides an interesting glimpse. The overwhelming impression I had from reading the book is that the gap—actually a chasm—between the interests and concerns of private law scholars and those of the profession is huge and deep and may be growing. It is this chasm that I would like to focus on.
If I make the tendentious statement that what law schools should do is (ultimately) to help law students (when they become lawyers) give better advice and service to their clients in the same way that medical schools exist to help medical students (when they become doctors) heal and look after their patients, then the question the book raises is whether it contributes to that goal. I should say that, in stating what I think is the goal that law schools should have, I do not want to get drawn into a discussion (or argument) about the kinds of courses students should be exposed to. Of course, there’s a place for an examination of legal theory, justice and all kinds of other things; the question is perhaps one of emphasis rather than anything else.
It’s no answer to my claim to say that the underlying values and concepts of the law are important and that they should be the focus of a legal education. I am happy to admit that they are important but the question is whether the concepts developed and explored in this book are useful guides to those who have, as students, to understand the law, or who, as practising lawyers, have to make the law work in a world where clients need to have things done for them and disputes resolved. At bottom, law is about doing things in the real world where it matters that the right or correct things are done. In this respect, professors of law are (or should be) different from professors of economics or philosophy.
This point of view leads me to make three general criticisms of the papers. The first is that law or the rules of the common law, including statutory rules which bear on private law questions, are seen in a light which ignores the actual complexity of their application or operation. The second, which may be an aspect of the first, is that the examples of problems that are offered for examination are far too often unreal and are therefore trivial. The third, which may also incorporate the previous two, is that the essays are written at such a high level of abstraction that it is hard, even in my imagination, to bring the discussion to a level that might help me understand the cases I look at or interest the practising lawyer.
I do not propose to analyze the individual papers in any detail but to treat the collection more as providing examples of approaches to the general problems that the book seeks to address.
There is a common and powerful human urge to find order or organizing principles in the world in which we live and, as lawyers, function. There are a number of general attempts to provide order or principles. The economist seeks to find order in ideas like “wealth maximization”; more philosophically inclined legal scholars seek to find order in organizing ideas like “corrective justice”. Concepts like rights, duties, justice (and their cognates and opposites) are brought in to help with the analysis.
The problem that the practising lawyer—and I include judges in this class—encounters is that, particularly in the context of private law, any organizing idea works only partially. (Stephen Waddams has made the point that Birks’ private law classification scheme does not as a matter of fact fit the actual development of the common law: see Dimensions of Private Law, (Cambridge: Cambridge University Press, 2003)). From the point of view of this class—a class I’ll just call “lawyers”—it’s too clear for argument that (i) law has things to do so that some instrumentalist theory has to be adopted; (ii) few things are simple, so that no single theory will work in every case, whether it’s “wealth maximization”, “corrective justice”, “contract as promise”, compensation or deterrence; and (iii) the demands of practice, the solicitor’s need to create relations which will be projected into the (uncertain) future and to control the risks his or her client faces, the barrister’s need to conduct litigation at a price the parties can afford and in the context of the adversary system, powerfully limit the consideration that a lawyer can give to theory.
Set against these facts, the contribution of the papers in this volume is uneven. For example, Mayo Moran’s analysis of the interrelation of public and private law would be more useful to the practising lawyer if she had addressed the inconsistencies arising from the fact that in some situations the common law goes merrily on its way, oblivious to the fact that there exists an almost consistent rejection of the common law in statutory provisions. I have in mind the common law rule that a third party beneficiary can’t sue under the contract which gives (or purports to give) it a right against one of the contracting parties. Whenever this rule has been seen to cause serious problems, it has been abrogated by statute. (The instances where this abrogation has occurred are noted in my text, Swan, Canadian Contract Law, Chapter 3.) It would be helpful to lawyers to have a principled basis for taking this kind of legislative policy into account. Another aspect of this development is the extent to which developments in, for example, the law of constructive dismissal lead (or reflect) the legislative developments in areas like workplace harassment. There are also cases where, for example, administrative ideas are used to protect interests that might, had counsel for the plaintiff framed his or her client’s cause of action differently, been dealt with by the law of contracts. Is this a development to be encouraged or discouraged?
The dichotomy between damages as “compensation” and “deterrence”, postulated particularly by Tony Duggan, is too simple. His analysis of the result in LAC Minerals Ltd. v. International Corona Resources Ltd.,  2 S.C.R. 574, 61 D.L.R. (4th) 14, misses the point that the award of the constructive trust (for the violation of an obligation of confidentiality) achieved almost perfect compensation: the award gave Corona the kind of equity stake in the property that it would have had had it been able to buy the property which Lac bought from under its nose. The constructive trust also, of course, avoided all the problems that would have arisen had the court had to make an award of damages: it avoided bankrupting Lac Minerals or seriously under-compensating Corona. Of course, any award of damages, just like the solicitor’s advice, “Don’t do it; the courts will make you pay,” has a deterrent function but it will also compensate for an obvious loss. The actual decision vindicated the position of those who regarded any messing around with confidential information as very dangerous, but compensation and deterrence are inextricably mixed.
Any discussion of “gains-based” recovery for breach of contract or tort has to deal with the practical problem that, while the plaintiff usually has access to the facts it needs to establish its loss, the defendant will have access to the facts needed to establish its gains. In any case, there are huge problems in adopting a gains-based award. What, for example, is the gain that an employer makes when it wrongfully dismisses an employee? The very unsatisfactory decision of the House of Lords in Attorney General v. Blake,  UKHL 45,  1 A.C. 268 (H.L.)—demonstrated by the inability of the judges in the majority to state a plausible basis for what they had done or to meet the arguments of the dissenting judge—is a vivid demonstration that gains-based recovery is not a good idea, however tempting it may be to teach traitors a lesson! The fact that the case has not been followed is further evidence that it should probably be regarded as confined to its very special facts.
While it’s an encouraging sign that writers refer to “she” as well as “he”, the use of either of these pronouns comes with a serious risk that necessary accuracy and sophistication will be lost, particularly when dealing with issues of contract. Most interesting (and difficult) contracts problems involve corporations and not individuals; the correct pronoun to use would therefore be “it”. It distorts any analysis of, for example, the third party beneficiary rule to look only at examples of individuals making contracts for the benefit of a third party. The real problems arise when corporations or business enterprises are “disaggregated” and, for example, employees and others are treated as being outside the protection of the contracts made by their employer. It is similarly important to consider the “battle of the forms” only in the context of an exchange between corporations.
I am grateful for advice and comments from my friend, Jakub Adamski.
Who Should Buy? Law Teachers, Graduate students