28 November 2013


'Taxonomy in Private Law—Furor in Text and Subtext' by Peter Watts in [2014] 1 New Zealand Law Review starts
with an overview of the debates that took place in the latter period of Peter Birks’s career over classification in private law. It does so by setting out the Birksian taxonomy and by collecting various extracts from Birks’s voluminous output, then contrasts those extracts with the views of a selection of his most prominent critics. The article next turns to a defence of Birks’s project and its aims of promoting rationality, the confinement of discretion, and modesty of function in the common law. The greater part of the article is devoted to showing how, in tort law particularly, New Zealand common law has lost its modesty and is intruding on personal freedoms. Instead of requiring an undertaking before a party becomes liable for nothing more than causing damage to another’s wealth, liability is being imposed from without by fudging the boundaries between contract and tort, and by using as tools nothing much sharper than “justice and fairness”. The final section of the article then turns to criticise, on similar grounds, the concept of unjust enrichment as promoted by Birks himself.
Watts comments that
Peter Birks’s clarion call, persisting from the early 1990s until his death in 2004, for a more orderly private law succeeded in creating a quite remarkable amount of academic disharmony. Not only have there been those who march in favour and those who waltz against, but amongst the rhythms has been a wide range of pitches, and instruments playing them. Although the noise has died down somewhat since Birks’s passing, it has not petered out. 
The bulk and range of the resulting literature is most daunting. A comprehensive review of it is not practicable. Anyway, the controversy rages from high jurisprudence to the small black letter details. In short, there was a text and a subtext to Birks’s campaign. Most people who disagreed with the campaign disagreed with both the text and the subtext, but some supported more or less the text but dissented from one or more parts of the subtext, and vice versa. If one has any interest at all in the controversy one is unlikely to be dispassionate. This passionate author agrees with most of the subtext but disagrees with some parts of the text.