The Unity Of The Common Law

The structure of common law has for many years been the subject of intense debate between formalists and functionalists. The former, drawing on legal realism, proposes that transactional law is a private law for interacting parties, while the later inspired by Kant, argue it is a public law serving the collective ends of society. But what if there were a unity between functionalism and formalism? What if, in this unity private law is modfied by a common good? In this revised and re-written edition, Alan Brudner draws on Hegel's legal philosophy to exhibit this unity in each of transactional laws main divisions; property, contract, unjust enrichment and tort. Brudner suggests each of these divisions is composed of private-law and public-law parts that complement each other and that they are connected by a single narrative thread. This thread consists in development towards a goal.

The structure of common law has for many years been the subject of intense debate between formalists and functionalists. The former, drawing on legal realism, proposes that transactional law is a private law for interacting parties, while the later, inspired by Kant, argue it is a public law serving the collective ends of society. But what if there were a unity between functionalism and formalism? What if, in this unity, private law is modfied by a common good? In this thoroughly revised and re-written edition of his classic book 'The Unity of the Common-Law: Studies in Hegelian Jurisprudence,' Alan Brudner draws on Hegel's legal philosophy to exhibit this unity in each of transactional laws main divisions; property, contract, unjust enrichment and tort. Brudner suggests each of these divisions is composed of private-law and public-law parts that complement each other and that they are connected by a single narrative thread. This thread consists in development towards a goal. The goal is the dignity that comes with the attainment of the legal conditions necessary and sufficient for reconciling dependence with independence. Thus the end point is what a transactional law can contribute to a life sufficient for dignity.

"The development of the law of obligations across the common law world has been, and continues to be, a story of unity and divergence. Its common origins continue to exert a powerful stabilising influence, carried forward by a methodology that places heavy weight on the historical foundations of legal principles. Divergence is, however, produced by numerous factors, including national and international human rights instruments, local statutory regimes, civil law influences, regional harmonisation, local circumstances and values and different political and legal cultures. The essays in this collection explore the forces that produce divergence, the countervailing forces that generate cohesion and consistency in the common law of obligations, and the influence that the major common law jurisdictions continue to exert over one another in this area of law. The chapters in this book were originally presented at the Seventh Biennial Conference on the Law of Obligations held in Hong Kong in July 2014. A second collection, entitled Divergences in Private Law (ISBN: 9781782256601), will focus on particular departures from the common law mainstream and the causes and effects of those deviations."--Bloomsbury Publishing.

The development of the law of obligations across the common law world has been, and continues to be, a story of unity and divergence. Its common origins continue to exert a powerful stabilising influence, carried forward by a methodology that places heavy weight on the historical foundations of legal principles. Divergence is, however, produced by numerous factors, including national and international human rights instruments, local statutory regimes, civil law influences, regional harmonisation, local circumstances and values and different political and legal cultures. The essays in this collection explore the forces that produce divergence, the countervailing forces that generate cohesion and consistency in the common law of obligations, and the influence that the major common law jurisdictions continue to exert over one another in this area of law. The chapters in this book were originally presented at the Seventh Biennial Conference on the Law of Obligations held in Hong Kong in July 2014. A second collection, entitled Divergences in Private Law (ISBN: 9781782256601), will focus on particular departures from the common law mainstream and the causes and effects of those deviations.

In this classic study, Alan Brudner investigates the basic structure of the common law of transactions. For decades, that structure has been the subject of intense debate between formalists, who say that transactional law is a private law for interacting parties, and functionalists, who say that it is a public law serving the collective ends of society. Against both camps, Brudner proposes a synthesis of formalism and functionalism in which private law is modified by a common good without being subservient to it. Drawing on Hegel's legal philosophy, the author exhibits this synthesis in each of transactional law's main divisions: property, contract, unjust enrichment, and tort. Each is a whole composed of private-law and public-law parts that complement each other, and the idea connecting the parts to each other is also latently present in each. Moreover, Brudner argues, a single narrative thread connects the divisions of transactional law to each other. Not a row of disconnected fields, transactional law is rather a story about the realization in law of the agent's claim to be a dignified end-master of its body, its acquisitions, and the shape of its life. Transactional law's divisions are stages in the progress toward that goal, each generating a potential developed by the next. Thus, contract law fulfils what is incompletely realized in property law, negligence law what is germinal in contract law, public insurance what is seminal in negligence law, and transactional law as a whole what is underdeveloped in public insurance. The end point is the limit of what a transactional law can contribute to a life sufficient for dignity. Reconfigured and expanded with a contribution by Jennifer Nadler, The Unity of the Common Law stands out among contemporary theories of private law in that it depicts private law as purposive without being instrumental and as autonomous without being emptily formal.

Beverley McLachlin was the first woman to be Chief Justice of the Supreme Court of Canada. Joining the Court while it was establishing its approach to the Canadian Charter of Rights and Freedoms, McLachlin aided the court in weathering the public backlash against controversial decisions during her tenure. Controversies in the Common Law explores Chief Justice McLachlin’s approach to legal reasoning, examines her remarkable contributions in controversial areas of the common law, and highlights the role of judicial philosophy in shaping the law. Chapters in this book span thirty years, and deal with a variety of topics – including tort, unjust enrichment, administrative and criminal law. The contributors show that McLachlin had a philosophical streak that drove her to ensure unity and consistency in the common law, and to prefer incremental change over revolution. Celebrating the career of an influential jurist, Controversies in the Common Law demonstrates how the common law approach taken by Chief Justice McLachlin has been successful in managing criticism and ensuring the legitimacy of the Court.

Explaining the curious legal doctrine of "coverture," William Blackstone famously declared that "by marriage, husband and wife are one person at law." This "covering" of a wife's legal identity by her husband meant that the greatest subordination of women to men developed within marriage. In England and its colonies, generations of judges, legislators, and husbands invoked coverture to limit married women's rights and property, but there was no monolithic concept of coverture and their justifications shifted to fit changing times: Were husband and wife lord and subject? Master and servant? Guardian and ward? Or one person at law? The essays in Married Women and the Law offer new insights into the legal effects of marriage for women from medieval to modern times. Focusing on the years prior to the passage of the Divorce Acts and Married Women's Property Acts in the late nineteenth century, contributors examine a variety of jurisdictions in the common law world, from civil courts to ecclesiastical and criminal courts. By bringing together studies of several common law jurisdictions over a span of centuries, they show how similar legal rules persisted and developed in different environments. This volume reveals not only legal changes and the women who creatively used or subverted coverture, but also astonishing continuities. Accessibly written and coherently presented, Married Women and the Law is an important look at the persistence of one of the longest lived ideas in British legal history. Contributors include Sara M. Butler (Loyola), Marisha Caswell (Queen’s), Mary Beth Combs (Fordham), Angela Fernandez (Toronto), Margaret Hunt (Amherst), Kim Kippen (Toronto), Natasha Korda (Wesleyan), Lindsay Moore (Boston), Barbara J. Todd (Toronto), and Danaya C. Wright (Florida).

Countering the influential view of Critical Legal Studies that law is an incoherent mixture of conflicting political ideologies, this book forges a new paradigm for understanding the common law as being unified and systematic. Alan Brudner applies Hegel's legal and moral philosophy to fashion a comprehensive synthesis of the common law of property, contract, tort, and crime. At a time when there is a strong tendency among scholars to view the common law as essentially fragmentary, inconsistent, and contradictory, Brudner suggests instead a coherence that synthesizes several interrelated dichotomies: good-centered and right-based legal paradigms, instrumental and non-instrumental conceptions of law, externalist and internalist interpretations of the common law system, and communitarian and individualist attempts to found the legal enterprise. Brudner covers genuinely new ground through an interpretation of the common law from the standpoint of Hegelian legal philosophy. His unifying notion of common law corresponds to Hegel's notion of Geist, suggesting a designation of the mutual dependence of the community and the atomistic self for their confirmation as ends.