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Article Excerpt
[The critics of Peter Birks' insistence that we should be able to draw a map of the law fail to appreciate fully what this mapping is meant to achieve. Mapping the law, properly understood, does not seek to deny that the law is a dynamic phenomenon. While our understanding of the law never stands completely still, reliance upon relatively stable categories of response-generating events ought to remain a key feature of our community's commitment to the rule of law. This is as true of equity as it is of the common law. Mapping the boundaries between these categories is a means of managing complexity and enabling the dissemination of the key features of legally relevant events. The possibility of difficult disputes being resolved according to law (as opposed to the personal authority of an adjudicator.) is enhanced where the major contours of the law are, in this way, rendered communicable and intelligible to all.]
CONTENTS I Introduction II The Rule of Law and Legal Categories III The Characteristics of Legal Categories A Choice of Basis of Classification 1 Artificiality 2 Notions of Just Conduct B Hierarchies of Categories IV What about Equity? A Equity and Rules B Equity as an Ameliorative Jurisdiction V Conclusion
I INTRODUCTION
The late Professor Peter Birks insisted that we should be able to draw a 'map of the law'. (1) Birks invoked the mapping analogy in opposition to those who advocated the abolition of categories in the study of law. Birks thought that the problem of lawyers 'getting stuck in single categories' was the result of a lack of attention to categorisation. (2) Young lawyers were not being taught how the categories of the law fit together into a single coherent body of principle and were, accordingly, impaired in their dealing with difficult cases--those not obviously contract cases or negligence cases and so on. (3) For Birks, the crucial matter was identifying the boundaries between categories. (4)
Birks' approach insists upon mutual exclusivity of categories. The law proceeds on the assumption that there is only one correct answer to any legal problem. It is the lawyer's obligation to find it. One criticism of the mapping metaphor and other aspects of Birks' approach to classification has been that mutual exclusivity has not been, historically, an essential characteristic of English private law. Stephen Waddams, for example, has noted that 'the concepts of contract, wrongdoing and unjust enrichment have ... often worked concurrently and cumulatively'. (5) He argued that an insistence that every legal intervention can be assigned to a single legal concept 'is apt to distort an understanding of the past, and consequently also of the present'. (6) Waddams also suggested that the making of a legal map (and every subsequent use of that map) determines the shape of the terrain that is being mapped. The analogy between law and cartography in Birks' metaphor is, therefore, an inexact one. (7)
Waddams made an important point. In English private law and those legal systems derived from it, the practice of the law is logically prior to its description and systematisation, but the description and systematisation has an effect upon future practice. Systematisation and categorisation carry a risk that we might overlook subtleties and complexities in the prior legal practice. (8) It is important to acknowledge the existence of this risk, but it should also be recognised that a community which places a high value upon like cases being decided alike and the existence of a principled basis for those decisions needs an efficient means for disseminating the grounds for legal decisions. This need generates, in turn, a need for the reasons for decisions to be expressed in relatively abstract terms--that is, in terms of the case's belonging to a category of like cases rather than in terms of the particular facts of the case.
The central thesis of this article is that a strong commitment to a relatively stable system of legal categories is an essential element of our community's commitment to the rule of the law. The values of consistency of adjudication and the intelligibility of adjudicative processes are more likely to be fulfilled where there are rules which dictate outcomes for cases and which are easily communicable from one adjudicator to another. This is as true of the body of law called 'equity' as it is of the common law. Nevertheless, the nature of the things being classified has a profound effect upon the way in which the classification process must proceed. It will be argued that while Birks' insistence upon mutual exclusivity of categories was sound, his particular conception of the causative event underestimated the importance of human attitudes in identifying the significance of factual events. It will be proposed that legally relevant events should be classified by reference to the basis upon which they are seen to justify, in terms of the relevant community's conception of just conduct, a response of a particular type.
II THE RULE OF LAW AND LEGAL CATEGORIES
Keith Mason has defined the rule of law as the idea that ' [o]ur society is controlled by legal rules, and those who exercise power within it (including the judges) are themselves bound by law.' (9) At least three implications can be drawn from this definition:
1 The conduct of people in our society exhibits certain regularities, not because people are always naturally inclined to behave in those ways, but because they are observing rules which they believe they ought to obey. These regularities enable people to form reasonable expectations about the conduct of others and, accordingly, interact with one another in an orderly fashion.
2 The response of state coercion to any departure from these regularities of conduct is fairly predictable because the state follows certain rules when applying that coercion.
3 When we say that judges make law, we use the word 'make' in a very weak sense. There is, in every legal dispute, presumed to be a single correct answer which follows from the application of the pre-existing law to the particular facts of the dispute and the judge is obliged to find that answer. (10)
The third of these propositions is particularly important for the purposes of the present discussion. The judicial arm of government is charged with applying the law in order to resolve particular legal disputes. This is not always a simple mechanical exercise. The law needs to be interpreted in order to discover how it should be applied to novel situations. This task ought to be entrusted only to the most learned and experienced members of the legal profession, and they should expect to have to exercise a large measure of critical judgement in the course of arriving at an answer. Nevertheless, it is inconsistent with the idea of the rule of law to assert that judges might, even occasionally, have any real choice (11) as to how they analyse a particular case. This assertion would be inconsistent with the notion that the parties to a dispute have entitlements which are defined by law, so that one of them has (prior to and independently of the judge's determination) a right to win. The exception which proves the rule is the situation where Parliament expressly confers a discretionary power upon judges to make determinations about what the parties' entitlements shall be. (12) However, this power exists only because Parliament has expressly conferred it in that particular form.
The proposition that disputes between citizens ought to be resolved according to law lies at the core of the insistence upon mutual exclusivity of categories. If it is not assumed that there is a correct answer to the dispute and that it is the judge's obligation to find that answer (rather than merely an answer), it is being conceded that a litigant's 'rights' in relation to that dispute might turn upon the idiosyncrasies of a particular judge. Waddams might argue that we are still some distance from establishing the proposition that legal categories must be mutually exclusive. The 'correct' answer in a particular case may, according to Waddams, be found in the concurrent and cumulative operation of two or more legal concepts. (13) Waddams explained the famous decision in Lumley v Gye, (14) which recognised a tort of interference in contractual relations, in the following terms:
The question whether Gye was unjustly enriched and the question whether he was a wrongdoer were not resolved independently: it was the very fact that Gye's enrichment from the transaction was perceived to be unjust that led the court to the conclusion that his conduct was wrongful, and vice versa, just as the same considerations taken together tended to support the conclusions that Lumley had something analogous to a proprietary interest, that it should be protected by injunction ... and that the result conformed to public policy, considered from the point of view both of restraint of trade and observance of contracts. (15)
Waddams denied that Lumley v Gye stood for the proposition that inducement of breaches of contract is always wrongful and instead suggested that
inducing breach of contract is wrongful where it infringes something analogous to a proprietary interest, where it causes an unjust enrichment, and where the public policy favouring freedom of action is outweighed by strong countervailing considerations. (16)
Even if we accept that Waddams' analysis of Lumley v Gye is an accurate reflection of the reasoning of the majority of the Court in that case, we are left with the question of whether the decision is the product of legal reasoning within a rule of law framework or an aberration. The dissenting judge, Coleridge J, approached the case in quite a different way. Coleridge J acknowledged the existence of a large body of case law concerning the 'seduction of servants', which had its basis in a statute enacted during the reign of King Edward III, but could not find any foundation within this body of case law for a broader proposition that the law responds to the procurement of a breach of contract. (17) His Honour went on to say:
I mention this case now as shewing how far courts of justice may be led if they allow themselves, in the pursuit of perfectly complete remedies for all wrongful acts, to transgress the bounds which our law, in a wise consciousness as I conceive of its limited powers, has imposed on itself, of redressing only the proximate and direct consequences of wrongful acts. (18)
This passage is an emphatic rejection of the 'concurrent and cumulative operation' approach. Commitment to the rule of law (as opposed to the rule of judges) requires that judges are restrained in the exercise of their powers by the need to identify the case before them as falling within an abstract category of cases in which the law dictates a response.
The precise bounds of the factual territory covered by a category will not be known in advance, but to acknowledge this is not to deny the existence of a category of cases which is susceptible to abstract definition. To recognise that the outer limits of the factual reach of the tort of negligence are not known does not prevent us from stating an abstract definition for the category of cases which fall within those bounds. An appropriate definition would refer to B's suffering of foreseeable harm as a...
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