LegalResearchFoundation

TE Holland infamously described the common law “chaos with a full index” and critics from Jeremy Bentham to Peter Birks have criticised common law for its manifest absence of system. Defenders of contemporary common law celebrate its alleged resolute antitheoretical
stance and resistance to systematisation. However, this characterisation of common law, shared by defenders and critics alike, is greatly flawed. Common law is deeply and pervasively committed to system. The law of any jurisdiction, because of features essential to its distinctive mode of operating and because of the need to maintain its integrity, cannot ignore the demands of system. Moreover, distinctive modes of common law reasoning presuppose and respond to the demands of system, while at the same time retaining a salutary pragmatism and wariness of global theorising.

The project of depicting torts as legal wrongs invites the question of
how the wrongs of tort law differ from other sorts of legal wrongs,
both within private law and beyond. The wrongs of tort law are
different from those of criminal law principally for two reasons: torts
are, by their very nature, relational and injury-inclusive wrongs,
while the wrongs of criminal law need not be either. That is because
tort law is a law for the private redress of wrongs, while criminal
law does not arise through the principle that those who have been
wrongfully injured are entitled to redress the wrong; it is predicated
on the need for the state to prohibit and punish wrongful conduct.
The very argumentative strategy of defining torts as private wrongs
raises the question of how torts differ from other private wrongs
for which our system permits civil recourse. The article argues that
the wrongs of tort law include a special kind of injury, for which
our system provides not only recourse but also redress. Failure to
appreciate the special nature of torts as wrongs has misdirected
tort theorists and judges in a variety of ways, which we are now
positioned to correct.

This paper 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.

This article 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.