20 May 2014


'Mapping the Common Law: Some Lessons from History' by Michael Lobban in (2014) 1 New Zealand Law Review 21-67
 explores the ways in which jurists from the 17th to the 19th centuries attempted to map the law. There were multiple ways of mapping the law and its concepts. No single taxonomy was comprehensive. The most general maps were found in treatises, organised largely around the rights of person and property. However, these treatises did not explain the law of obligations and its workings. A better conceptual mapping of the law of obligations could be found in the common law system of pleading, but even this “map” was incomplete, for it failed to embrace all the concepts which lawyers articulated in courtroom argumentation. Legal taxonomies thus did not determine the development of law: rather, lawyers and jurists used concepts and classifications in a flexible and fluid way. 
'Taxonomy in Private Law — Furor in Text and Subtext' by Peter Watts at 107-144 in the same journals
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, collecting various extracts from Birks’s voluminous output, and then contrasting 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 turns to criticise, on similar grounds, the concept of unjust enrichment as promoted by Birks himself.