Taking Law Seriously

TAKING LAW SERIOUSLY Stephen A Smith, Faculty of Law, McGill University Published in (2000) 50 University of Toronto Law Journal 241-259. The four collections of essays that are the subject of this review fall into a category usually described as traditional or doctrinal legal scholarship. The description refers in part to the books’ subject-matter, which is broadly the law of obligations (contract, tort, unjust enrichment, etc.), but more so to their approach to that subject-matter. This approach, again in broad terms, is to examine the law using language, concepts, and techniques that are similar to those employed by (and in) the courts. In other words, these are ‘black-letter’ law books. Whether these books would be described as orthodox legal scholarship depends largely on where the reader lives. In the United Kingdom, in Australia, and in most if not all civilian jurisdictions this sort of work is probably still the orthodox form of legal scholarship, meaning not only that it is practiced widely but that it is considered academically important. In the United Kingdom these books will be read. In Canada, and even more so in the United States, doctrinal scholarship is still very much alive - primarily in the form of student and practitioner texts - but it ceased to be the academic flavor of the month long ago. Few aspiring academics present doctrinal scholarship at ‘job-talks’ in North American law faculties, and collections of essays such as those discussed here are not widely read nor even published. The primary question addressed in this review is whether, from the perspective of North American academia, this difference in legal cultures is a cause for pride or concern. In other words, is doctrinal scholarship a worthwhile * A review of Birks, P.B.H. ed., The Classification of Obligations (Oxford: Oxford University Press, 1997); Burrows, A., Understanding the Law of Obligations: Essays on Contract, Tort and Restitution (Oxford: Hart Publishing, 1998); Cornish, W.R., Nolan, R., O’Sullivan, J., & Virgo, G., eds. Restitution - Past, Present & Future: Essays in Honour of Gareth Jones (Oxford: Hart Publishing, 1998); Rose, F., ed., Failure of Contracts: Contractual, Restitutionary and Proprietary Consequences (Oxford: Hart Publishing, 1997) Electronic copy available at: http://ssrn.com/abstract=2690580 academic pursuit? Like much doctrinal scholarship, the books under review focus to a considerable extent on questions of classification, as understood in the traditional or ‘legal’ sense. Is the obligation to return payments made under a failed contract an obligation in contract or in unjust enrichment? Is a trespasser’s obligation to hand over her profits an obligation in tort or in unjust enrichment? Are constructive trusts really trusts? Where does estoppel fit within the law of obligations? Why does it matter? This focus on classification is clearest in the contributions to Peter Birks’ The Classification of Obligations, but it also underlies, to a greater or lesser extent, most of the essays in the other volumes. The first three essays in the collection of Andrew Burrows’ previously published articles Understanding the Law of Obligations (‘Dividing the Law of Obligations’, ‘Solving the Problem of Concurrent Liability’, and ‘Understanding the Law of Restitution: A Map Through the Thicket’) examine directly the boundaries between contract, tort and restitution. The contributions to Restitution - Past, Present & Future are, like nearly everything written on restitution in recent years, preoccupied with questions of what does and does not belong to the law of restitution. Finally, the papers found in Failure of Contracts: Contractual, Restitutionary and Proprietary Consequences are, as the book’s title suggests, concerned to a large extent with the proper classification of the different responses the law does or might make to a failed contract. Given this focus on classification, a useful way of examining the significance of these and similar books - and of doctrinal scholarship generally - is by assessing the books in the light of certain general questions about the role of classification in law, in particular questions about the role of classification when it is done in the traditional or doctrinal sense. Three questions about classification in law will be addressed: (1) Why (classify)?, (2) How (to classify)?, and (3) What (to classify)? The conclusion of the review is that doctrinal scholarship of the sort exemplified in 2 Electronic copy available at: http://ssrn.com/abstract=2690580 the reviewed books is academically significant - indeed it is indispensable. 1. Why (classify)? Some lawyers regard questions of classification - for example the question as to whether the ‘estoppel’ case of Central London Property Trust Ltd v. High Trees House Ltd1 is a part of contract law, tort law, or something else - as an exercise in academic navel-gazing. What matters, they say, is not how a case is labeled but what actually happened - who won and what was won. A moment’s reflection makes clear that unqualified criticisms of this sort cannot seriously be maintained, or at least not maintained by anyone engaged in trying to understand law, however broadly that project is conceived. It is of course entirely legitimate to criticize the conclusions of particular classificatory schemes - for example the orthodox view that High Trees is a contracts case - as well as the appropriateness of an entire system of classification - for example the use of legal categories such as contract, tort and unjust enrichment as opposed to categories drawn from economics, politics, sociology or some other discipline. But to criticize classification per se amounts to criticizing the very possibility of increasing our knowledge about the object of our inquiry. Gaining knowledge of a subject is largely a matter of learning how to classify the subject and its constituent elements. When my son was a baby he learned to distinguish between animate and inanimate objects; later he learned to distinguish between human and animals; later still between dogs and cats; and, eventually, he learned to distinguish between different sorts of dogs. His knowledge of the living world, a knowledge which is at once both practical (he needs to distinguish between dangerous and non-dangerous animals to survive) and theoretical (to understand the world he lives in he needs to know that dogs and cats are different), is acquired through imposing a classification system on the living things around him. 1 [1947] KB 130. 3 That system will be refined and sometimes radically re-ordered in response to his needs and to new information - he may decide one day that cats and dogs ought for some purposes be in the same category - but insofar as he is learning he will inevitably be engaged in a process of classification. Acquiring knowledge of the world and classifying the things that make up the world go hand in hand. What is true of our knowledge of the animal world is equally true of our knowledge of law and of other social phenomena. We draw classifications in law not just for the sake of classifying, but because classifying rules, cases and so on is a large part of what acquiring legal knowledge means. The knowledge that classification in law provides is both theoretical and practical. Classifying a particular decision as founded on X obligation rather than Y obligation is a claim about the meaning of the decision, as well as about how the decision should be applied in the future. To make good decisions courts need to distinguish like from unlike; to understand the law scholars need to do the same thing. When lawyers and scholars argue about how a case should be decided, or about the meaning of a particular rule, they are in large part arguing about how to classify the case or the rule. To object to classification per se is thus a non-starter: any plausible attack against classificatory exercises in law must be more limited in scope. Two possibilities suggest themselves. One is to argue that the task of classification is finished: the job of dividing law into categories was largely complete by the end of the 19th century, and thus our energies should be directed elsewhere. We know which things are dogs and which are cats and there is nothing more useful to be said on the subject. There is a grain of truth in this criticism, at least when applied to doctrinal classifications. Many of the large number of doctrinal textbooks written today - and a large number are still being written, particularly in the United Kingdom - differ little from one another or from their 19th century predecessors. The nature of the textbook market 4 is such that many fine scholars now devote a significant amount of their research time almost exclusively to the endless task of producing the next edition of a textbook. But from a broader perspective, this view of doctrinal classification is, particularly as applied to the common law world, exactly the reverse of the truth. As any civil lawyer learning about the common law immediately notices, the common law world is in large part a chaotic mess at the doctrinal level. And it is a mess that legal scholarship, doctrinal or otherwise, has achieved only limited success in cleaning up. A few examples are sufficient to illustrate the point. Tort scholarship pays considerable attention to the nature of negligence law, but this scholarship largely ignores the large number of non-negligence based torts. We include these ‘torts’ in our torts textbooks, but why are they there? No one seems certain. Unjust enrichment law has been significantly rationalized over the past quarter century, largely through the efforts of scholars such as Goff, Jones, and Birks, but it remains an area where nearly everything is up for grabs - from the name of the subject (see Birks’ essay ‘Misnomer’ in Restitution: Past, Present and Future) to its very status as a subject (see Hedley’s essay ‘Restitution: Contract’s Twin?’ in Failure of Contracts). The same could be said of equity, the black hole of the common law. Textbooks on ‘Equity’ continue to be published in the common law world but it is unclear - and, unfortunately, usually left unclear - whether anything other than historical accident links the rules included therein. Maitland’s adage about the forms of action continuing to rule us from their graves still has a discomfiting ring of truth to it. The sort of middle level theorizing that characterizes much civilian jurisprudence (and which is characteristic of the best contributions to the books under review) has for much of the history of the common law largely been absent. The job of classifying law is in any event a never-ending process in both common and civil law systems. Regardless of how well-developed a classificatory system is, it would be extreme hubris to think the task is or could ever be finished: this conclusion is equivalent to 5 asserting we know all there is to know about the subject. No one supposes this is true of our knowledge of the natural world; it is even less likely to be true of our knowledge of a social phenomenum, such as law, that is itself changing over time. A second possible objection to classification per se is that classificatory exercises, at least in regard to law, are a search for a will o’ the wisp - a futile quest to find order where none exists. Again, there is a grain of truth in this objection. To suppose, as some doctrinal (and theoretical!) work appears to suppose, that the law can be reduced to something resembling a neat set of mathematical propositions is unrealistic. A human institution that is the product of thousands of actors working over hundreds of years will never possess a perfect rationality. Yet the opposite conclusion - that the law is an irremediably chaotic mess - is equally untenable. It is a theoretical, but not a practical possibility. Most of the thousands of actors forming the law over those hundreds of years were attempting, inter alia and with varying abilities, to produce some sort of order in the law. It would be bizarre if they achieved no success at all in this endeavour. Not surprisingly, relatively few legal scholars criticize classificatory exercises in law on the above basis today. And those who do are generally contradicted by their own efforts in legal scholarship. Why study a subject unless you believe there is some possibility of making some sense of that subject? If we saw someone studying the placement of leaves fallen on the pavement we would think either that the person was crazy or - more charitably - that the person saw or hoped to see some sort of order in those leaves which we previously had not noticed. Studying a subject you think has no order at all is an odd way to spend your time. With one or two exceptions (notably Hedley’s skeptical essay ‘Restitution: Contract’s Twin?’ in Failure of Contracts) the contributions to the reviewed books operate under the assumption that there is a reasonable though not perfect degree of order underlying private law. 6 The not insignificant number of disagreements between the various contributors are disagreements about what that order is, not about whether there is an order. It is worth remembering, in addition, that the most rigid and monolithic attempts to impose order on legal materials have not in the main been the products of doctrinal scholarship. For example the explanations of law offered by early Posnerian style economic analysis are more ambitious in their attempts to fit all of law into one unifying schema than anything offered by even the most doctrinal of the doctrinal systems-builders. Hostility to classification of the sort done in the books under review is thus not plausible if portrayed as a general attack on the importance of classification in understanding law. As I hope to have shown, albeit in summary form, such a view is extravagant, self-defeating, and is in any event rarely taken seriously. If such hostility is to be taken seriously - as I believe it should be - it must be regarded not as hostility to classification per se, but rather as hostility to the particular method of classification that is adopted by doctrinal scholars and that is exemplified in the books under review. This brings us to the second of our questions about classification in law. 2. How (to classify?) The reason the books under review are described as traditional legal scholarship is not, then, because they care about classification and believe it is a useful exercise in respect of law. Nearly all legal scholarship is traditional in this sense. Rather, they are traditional because of the way that the authors go about classifying, and in particular because of the categories the authors employ. These categories are legal categories, by which is meant that they are, broadly speaking, the sorts of categories that judges use when deciding cases, that legislators employ when making law, and that lawyers use when arguing before courts. In other words, they are categories such as 7 ‘tort’, ‘contract’, ‘unjust enrichment’, ‘equity’, and so on. Using orthodox legal terminology does not of course mean that an author merely duplicates what lawmakers have said. Good doctrinal scholarship, as exemplified in the works under review, critically evaluates and revises, sometimes radically, the boundaries of accepted legal categories. It may also invent new categories - as in the academic invention or at least recognition in the United Kingdom over the last 30 or so years of the law of unjust enrichment. Doctrinal does not mean conservative. What makes work doctrinal is that the author uses legal arguments and legal language - even when arguing for a radical re-organization of the conventional legal understanding of law. For example, the acceptance in the United Kingdom, in the 1991 case of Lipkin Gorman v Karpnale Ltd2, that there exists a cause of action in respect of unjust enrichment was pre-dated by the doctrinal writings of Goff, Jones and Birks (amongst others), who had argued that such a cause of action should be judicially recognized. In short, doctrinal scholarship can and often does criticize the status quo, but it does so employing the sort of language and arguments that a judge might be convinced to adopt. Doctrinal scholarship is still produced in great quantities throughout North America, but, particularly in the United States, it is rarely engaged in the sort of revisionary exercise that has occupied unjust enrichment scholars in the United Kingdom over the last 30 years. A vivid illustration of this lack of interest in doctrinal recategorization is indeed the marginal status of unjust enrichment law in American law schools and legal writing - this despite the path-breaking 1937 Restatement of Restitution, and George Palmer’s encyclopaedic 1978 set of volumes The Law of Restitution. Doctrinal work, as noted earlier, is not exactly fashionable in North American academic circles. We teach doctrine, but if we want to be to be noticed we write about law from distinctly non-legal perspectives - economic analysis of law, critical legal studies, 2 [1991] 2 AC 548. 8 feminist legal theory, critical race theory, sociology of law, and so on. The slogan ‘we are all realists now’ is so well-accepted in North America (in particular in the United States) that an unstated working assumption of most legal academics is that judicial explanations of a judgment tell us little if anything about why a case was decided as it was . The existence of the books under review show that this assumption is not shared equally by English scholars. A fascinating book remains to be written explaining why American scholarship took a realist turn early in this century and has continued, in various manifestations, on this path while English scholarship went a different direction. (Canada’s place in this story is, perhaps typically, somewhere in the midAtlantic). Our immediate concern, however, is with the different question of what justification, if any, can be given for non-realist, that is, doctrinal, scholarship? Three justifications will be examined below. The first two are unconvincing, but the third provides, I shall suggest, a robust defence of doctrinal scholarship. a. The practical value of doctrine One possible justification for doctrinal scholarship can be passed over quickly. The justification is that doctrinal scholarship is important because it helps lawyers and law students acquire the skills necessary to operate in the real world of law. To argue before a court you must employ the language and concepts employed in doctrinal scholarship - whatever you may think of the underlying merits of such scholarship. A lawyer may believe firmly that judges are biased towards business interests, but that lawyer will not succeed in court by arguing that her client ought to win because she is in business. Even if that fact is crucial to the judge, it must be presented as part of a doctrinal, legal argument. Thus, to prepare law students to operate as lawyers they should learn this language - and such knowledge is acquired by, inter alia, reading 9 doctrinal scholarship. It should be evident that whatever the practical appeal of the above justification to wouldbe lawyers, and to educators wanting to fill their classrooms, it hardly provides a serious academic defence of doctrinal scholarship. It reduces doctrinal scholarship - and doctrinal teaching - to purely vocational training. Law studies become a kind of advanced course in plumbing: practically important but not an academic discipline. This defence of doctrine leaves the academic study of law to those who approach law from non-legal perspectives. b. The conceptual priority of doctrine More significant, though ultimately also unpersuasive, is a justification of doctrinal scholarship based on its conceptual priority over non-doctrinal scholarship. The argument is that non-doctrinal analyses of law are logically parasitic upon doctrinal analyses of law because they rely upon doctrinal analysis to know what it is they are analysing. An ‘economic analysis of contract law’ assumes that there is something out there called ‘contract law’, and it further assumes, usually implicitly, that the parameters of contract law are established by and large by doctrinal discourse. The vast majority of non-doctrinal analyses of ‘legal’ topics are indeed parasitic upon doctrinal work in this way. The very phrase ‘non-doctrinal legal scholarship’ presumes that there is a category, legal, which is defined in other than non-doctrinal terms. The above argument, however, gives no reason for believing that legal categories need be anything more than mere objects of data for, rather than the products of, scholarly inquiry. Most non-doctrinal scholarship that goes on in law schools does more or less accept as a given the traditional divisions of the law, but as a matter of conceptual priority this acceptance is not necessary - and outside of law school scholarship this approach is rarely taken. For example, 10 economists typically treat contract law as just one of various modes of organizing economic transactions. They do not start by trying to explain contract law but rather by trying to explain economic structures. The legal ‘view’ of the law has no conceptual priority in such explanations; indeed that view is often dismissed as unimportant if not misleading. c. Understanding law and the importance of taking account of law’s selfunderstanding Doctrinal scholarship is not justified by its practical importance or its conceptual priority. Its justification is more basic: doctrinal scholarship provides the best way of understanding law. To explain this claim we need to examine certain issues of general legal theory. Legal scholarship is done with various purposes in mind, but the basic aim of legal scholarship is to understand the law better. Even if our ultimate goal is law reform, we need first to understand what it is we are trying to reform. Similarly, even if our ultimate goal is to understand better law’s historical roots, we need first to have some idea of what it is that we are trying to trace the historical roots. Understanding in law, like understanding in other areas of life, is achieved through making sense of the object of our inquiry, through making that object intelligible to us in a way it was not intelligible before. Some things we cannot understand because we cannot make sense of them (at least not with our present tools), for example the arrangement of leaves on the ground or the mutterings of a lunatic. It is often useful to know that something is unintelligible - that it lacks any kind of order - but this is not the same as understanding that thing. To understand a thing you must understand its constituent elements. In the case of law, one of these elements is that law is a self-reflective activity. Unlike natural phenomena such as 11 weather or the motions of planets, law is a human practice. As such it may - and in the case of law does - possess a feature not possessed by planets or volcanoes, namely a self-understanding. Legal rules and decisions are handed down as part of a practice - the law - that itself claims how, at least in part, those rules and decisions ought to be understood. For example, legal rules and decisions are presented not as mere orders - as the commands of a gunman writ large - but rather as telling citizens what they ought to do. Legal rules claim to be authoritative, to provide citizens subject to them with good reasons for acting in one way rather than another. One aspect of law’s self-understanding is therefore that law regards itself as being in fact authoritative, as in fact providing good reasons for acting in a certain way. At least since the publication of H.L.A. Hart’s The Concept of Law3 legal theorists have placed great significance on this aspect of law; indeed, most of the disputes between positivists and natural lawyers reduce to disputes about the significance of law’s claim to be a justified authority. Less studied by legal theorists than law’s claim to authority, but more important for our present concerns, is a second aspect of law’s self-understanding. This is that the law provides its own characteristic method of organizing legal rules and decisions. The law, and in particular legal decisions in the common law, divide private law rules into the familiar legal categories of contract, tort, unjust enrichment and so on. By doing this, legal decisions themselves tell us how they ought to be classified and categorized - whether they are tort cases, contract cases, or whatever. Law thus possesses, as a part of its self-understanding, what I shall call a ‘selforganization’. There exists a characteristic ‘legal’ mode of organizing legal materials. It follows that to understand law we need to understand what I shall call its ‘organizational claims’. Understanding those claims, like understanding anything, means making sense of them revealing an intelligible order within them. We may not succeed - law’s organizational claims 3 (1961). 12 may be unintelligible - but insofar as we are trying to understand law better we must try to find if such order exists. These observations about law’s self-understanding are not intended to be controversial. To be sure, not all legal work regards explaining or in any way taking account of law’s selfunderstanding as part of its goal. Some scholarship, such as crude functionalist theories of law, simply ignore law’s self-understanding: they impose an external order upon the legal materials which fails to take account in any way of law’s organizational claims. But amongst sophisticated scholars, there is broad, if not quite universal, agreement that ‘law’s self-understanding’ is a feature of law that legal scholars must take into account if their work is to be of general and not merely local importance. A satisfactory explanation of a subject must take account of the important features of the subject it is seeking to explain, and in the case of law one of those features is law’s self-organization, the division of the law into the familiar legal categories. There is much less agreement amongst scholars when they turn to consider what is required in order to ‘take account’ of law’s self-understanding. Our particular concern in this review is with what is required to take account of law’s organizational claims, but the relevant issues - and disagreements - are the same regardless of which aspect of law’s self-understanding is the focus. Three approaches to taking account of law’s self-understanding, and thus of law’s organizational claims, can be distinguished. I shall call these the weak, strong, and moderate approaches. Each is examined below. The differences between these approaches reflect some of the deepest divisions in general legal theory, thus any conclusions reached in a review of this scope must be tentative. That proviso in mind, the primary argument advanced below is that a strong case can be made for the moderate approach and, furthermore, that the moderate approach is exemplified by doctrinal scholarship. 13 i. The weak approach According to the weak approach an adequate explanation of law’s self-understanding may be entirely external to that self-understanding. A satisfactory explanation need not have any relation to how that self-understanding presents or understands itself. Another way of defining a ‘weak explanation’ is that its explanation of law’s self-understanding may reveal that selfunderstanding to be something completely different from what it purports to be. An example may be useful here. The explanation that the law offers for its self-understanding is, not surprisingly, that this self-understanding is true. Law’s explanation for its claim to authority is that law is in fact an authority. Similarly, law’s justification for using the organizational categories that it uses is that these categories accurately represent legal reality. Now one possible explanation of law’s claims to authority (or of its organizational claims) is that the legal actors who are making this claim are insincere - that there is a conspiracy afoot to portray the law as authoritative even though it is known that this claim is false. This is a weak explanation of law’s claim to authority. It is weak because not only does it suppose that law is not in fact authoritative but it further supposes that the truth of law’s claim to authority is unrelated to why the law makes the claim. According to a conspiracy theory, law’s actual authority has nothing to do with why law claims authority. Conspiracy theory explanations of law’s organizational claims and of other aspects of law’s self-understanding have rarely been taken seriously. No one doubts that judges occasionally dissemble, but as a general explanation of features of law that have evolved over centuries through the efforts of countless individuals, conspiracy theories seem hardly plausible. A second, more plausible type of weak explanation of law’s self-understanding is a functionalist 14 explanation. Like a conspiracy theory explanation of law’s organizational claims, a functionalist explanation is uninterested in the truth of those claims. But rather than supposing that legal actors consciously misrepresent their motives, a functionalist explanation supposes that legal actors are motivated and controlled by external forces. These external forces are unacknowledged; indeed, the legal actors typically are unaware of them. An example of a functionalist explanation of law’s organizational claims is the argument that the traditional legal categories are an inevitable product of the relations of production in a capitalist society; more specifically, that the traditional categories exist to fulfill the necessary function of obscuring the exploitative nature of capitalism behind an elegant neutral facade. On this view, the structural needs of capitalism drive category-creation regardless of the aims and intentions of lawmakers. A second example of a functionalist explanation would be an argument to the effect that the law’s divisions into contract, tort and so are the result of a hidden-hand evolutionary process. Unbeknownst to, or at least uncontrolled by, the judges involved, this evolutionary process systematically distinguishes between low cost transactions (contract) and high cost transactions (tort). If true, functionalist accounts of this kind reveal an intelligible order in the data, albeit an order that the legal actors creating that order were not trying to achieve. Functionalist explanations have a long pedigree in the social sciences and clearly cannot be dismissed out of hand. Readers should be aware, however, that functionalist explanations appear to be vulnerable to a well-known objection. On the one hand functionalist explanations seem, like conspiracy accounts, to rest on implausible factual assumptions. Given the number, variety, and sophistication of the actors involved in making law’s organizational claims, the suggestion that these actors have all misunderstood the true reasons they explain the law as they do seems prima facie implausible. On the other hand, insofar as it appears possible to produce a plausible 15 explanation for how such actors could be so deluded, such an explanation runs the risk of proving too much. If the hidden forces that drive the development of the law work as successfully and covertly as the explanation suggests, the obvious question is why isn’t the explanation’s author - and everyone else for that matter - subject to the same or similar types of unconscious forces. Functionalism, at least in its stronger versions, becomes self-defeating. ii. The strong approach For these and other reasons, although functionalist explanations of the law or of parts of the law remain popular, such explanations are not widely embraced by scholars who take seriously the requirement that an explanation of the law must take account of law’s selfunderstanding. This rejection is clearest in those who adopt what I call the ‘strong’ approach to taking account of law’s organizational claims and of other aspects of law’s self-understanding. According to the strong approach, taking account of law’s self-understanding means attempting to justify, so far as possible, that understanding. The underlying idea is that to understand a selfreflective human practice, such as the law, the theorist must join in that practice, and hence attempt, so far as the possible, to explain the practice in the same way that the practice explains itself.4 The theorist need not duplicate law’s self-understanding exactly - it is part of that selfunderstanding that the law may be mistaken in parts - but the more it justifies that understanding the better the explanation. As applied to law’s claims to be morally justified - to the claim that 4 See e.g., R. Dworkin, Law’s Empire (1986) at p.14 (‘This book takes up the internal, participants' point of view; it tries to grasp the argumentative character of our legal practice by joining that practice and struggling with the issues of soundness and truth participants face’) and E. Weinrib, The Idea of Private Law (1995) at p 11 (‘...not only does an internal account orient itself to the features salient in legal experience, but it also understands those (and other) features as they are understood from within the law’). 16 law is an actual and not just a de facto authority - the strong approach holds that an explanation of the law is better, all other things being equal, the more it shows the law as in fact morally justified. As applied to law’s organizational claims, the strong approach holds that an explanation of the law is a better explanation if it can show that the law actually should be organized in the very way the law organizes itself. It is not possible within the scope of this review to assess in detail the sophisticated arguments that have been made on behalf of the strong approach, nor the variety of criticisms that have been directed against it.5 But the gist of the main objection to the strong approach can be explained in a few sentences. The objection is formulated in different ways, but perhaps the simplest formulation holds that the strong approach wrongly assumes that intelligibility and truth are the same things. Understanding a thing, as we noted earlier, is basically a process of trying to make that thing intelligible, of trying to reveal some sort of order in that thing. In the case of law, this means making intelligible, inter alia, law’s claims as to how law should be understood. The objection to the strong approach is that a claim may be intelligible even if it is revealed to be false. A statement such as ‘purple is very tasty’ is not intelligible. The reason it is not intelligible is not because it is false - the adjectives true and false are meaningless here - but because it is conceptually confused. It is nonsense. On the other hand, a statement such as ‘infanticide is morally unobjectionable’ is false, but it is intelligible. We may disagree with the speaker, but we can, if we try hard enough, understand how someone might come to support such a view, false though it is. We could not imagine arguing with someone as to whether purple is tasty, but we could imagine arguing with someone about whether infanticide is objectionable. To take another example: you may not agree with proponents of apartheid in South Africa, but you It should also be noted that the primary critics of doctrinal scholarship are adherents not of the strong approach but of the weak approach. 5 17 can, if you try, understand what they are saying and why they argue as they do. They are mistaken, but they are not insane. In a similar vein, you may think the law’s prior classification of much of what we now call unjust enrichment law as quasi-contract was wrong, but that classification was an intelligible position, it was a position that could be understood, and debated. The same could not have been said if the courts had divided the law alphabetically according to the first letter of the rule in question. That approach would not merely have been wrong, it would have been nonsensical. Proponents of the ‘alphabetical approach’ are conceptually confused, not just mistaken. In short, a false belief can be and often is perfectly intelligible. It follows that if our aim is to understand the law - to make it intelligible ‘ the strong approach’s requirement that we try and show that the law’s self-organization is true is unnecessary.. iii. The moderate approach The two approaches to taking account of law’s self-understanding discussed above represent extreme views as to what is required to make that self-understanding intelligible. On the weak approach a merely causal explanation of law’s claims is enough. On the strong approach the explanation must show why those claims are true. The moderate approach, as its name suggests, lies between these two extremes. Mere causality is not enough, but nor need a good explanation be identical with law’s self-understanding. Stated in positive terms, the moderate approach requires that a satisfactory explanation of the law be internal to the practice of law. An explanation is internal, in the sense intended here, if it is of a sort that, even if not identical with how law is understood from the inside (law’s self understanding), could be accepted by insiders. The explanation offered by the scholar must be of the same kind as the explanation that the practice offers itself. 18 Consider for example the idea that unjust enrichment is a distinct cause of action. Until quite recently this claim was not recognized in Anglo-Canadian law’s self-understanding. The scholars such as Goff, Jones and Birks who argued for its recognition were nevertheless making an argument that was internal to the practice of law. Their arguments were in broad terms the same kind of arguments as the arguments that judges had themselves used in support of the traditional position. Their arguments were the sorts of arguments that could be presented before a court of law. The clearest evidence of the internality of their arguments is that they were in fact eventually accepted by the judiciary. The same can not be said for all scholarly recategorizations of the law - for example a recategorization according to whether a rule is based on individualistic or altruistic mores, or a recategorization according to the wealth effects of rules. Such categorizations are different in kind from the current self-understandings, they are foreign to the concepts and lexicon of the law. Again, it is not possible within this review to assess in detail the moderate approach. In any event, the main purpose of this essay is not to defend a particular theoretical position on the nature of understanding. The purpose, rather, is to demonstrate that there exists a prima facie plausible theoretical position that supports the kind of scholarship done in the books under review. The moderate approach’s conception of intelligibility is not vulnerable to the objections that were made against the weak and strong approaches. It does not rely on the unrealistic assumption that lawmakers are either deluded about their motivations or consciously misleading us. But nor does it assume that we can understand only those whom we agree with. Moderate approach explanations engage in a genuine debate with law’s self-understanding. As in any real debate, they do not assume the other side to the debate is either cynical or unaware of what it is doing - why debate in such a case - but nor do they assume the other side must be correct (which, again, would make debate meaningless). In short, proponents of the moderate approach explain 19 law in such a way that law’s self-understanding, including law’s organizational claims, are viewed as intelligible even if they turn out to be false. iv. Classifying doctrinal work Where does doctrinal work such as that seen in the collections under review fall within the above schema? Doctrinal work clearly assumes that a good explanation must do more than satisfy the weak approach test for taking account of law’s self-understanding. The defining feature of doctrinal work is that it adopts language and concepts that are internal rather than external to the law. But doctrinal work does not, or at least need not, take internality to the lengths required by the strong approach. To be sure, some doctrinal work (found primarily in textbooks) appears motivated by an assumption that a good account of the law must satisfy the strong approach. But this assumption is not necessary to doctrinal work as I have defined it, and it is not characteristic of the doctrinal work in the collections under review. The contributors use language and categories of the same kind that lawyers and judges typically use, but they often, indeed typically, disagree with significant aspects of law’s current self-understanding. Law’s current categories are evaluated and often rejected. These works are ‘doctrinal’, then, in the sense only that they advance the sorts of arguments that, roughly speaking, a court might be willing to listen to, even if court has not previously agreed with such an argument. They are written in a language that respects law’s self-understanding. They suppose that the categories that the law now adopts - contract, tort, and so on - are, if not always justified, intelligible positions to sincerely hold. When judges are shown to have made a mistake - say classifying unjust enrichment cases under the heading of quasi-contract - the mistake is shown to be of a sort that is understandable (which is not to say that it is forgivable). The standard criticism of 20 doctrinal work is not that the judges were crazy or incoherent or insincere or deluded, but merely that their thinking was insufficiently evolved. In short, doctrinal work follows the moderate approach described above. v. The value of non-doctrinal scholarship The all too brief arguments presented above should be understood as arguments in support of doctrinal scholarship rather than as arguments against non-doctrinal scholarship. Both types of scholarship are important and there is room in law schools for each to be practised. If the arguments above are correct, then non-doctrinal scholarship does not provide the best understanding of the law. But understanding the law is not all that we do or should care about. We also care about whether the law is just (valuable, good, desirable, etc.) and, if it is not just, how it should be reformed. To evaluate the law and argue for its reform it is not necessary to work internally, that is, to write doctrinally (though if you are trying to convince judges and not just fellow academics it certainly helps). If you think the aim of the law should be to improve efficiency or to improve the lot of certain social groups, then by all means evaluate the law according to whether it achieves these goals. Applaud the law when it is successful, and criticize the law when it is not. If you think the law would produce better results if it were organized differently, then argue for a re-organization. The value of such scholarship is clear. But we should not confuse such an exercise with the exercise of understanding the law we now have. 3. What (to classify)? If it can be agreed that classification in law, and in particular doctrinal classification in 21 law, is an important task, there remains one further question raised by the books under review that needs to be addressed. In respect of which areas of law should doctrinal scholarship be focusing now and in the near future? I will limit my comments here to private law. The contributions to the four books under review confirm what most observers of English legal academia over the past 25 years would conclude, namely that the most noteworthy scholarly achievements in the area of private law over that period have been in unjust enrichment law. In the same way that contract law was created and shaped from a morass of widely scattered legal material by the great textbook writers of the late 19th century, unjust enrichment as a distinct legal category has been created and shaped by writers over the past quarter century (the most important of whom are nearly all represented in the books under review). And as the contributions to these books make clear, the job of organizing and developing unjust enrichment law is far from complete. Major questions, for example the status of so called ‘restitution for wrongs’ and of restitution for enrichment by services, to name but two contentious areas, remain the subject of strong debate. In the short run, then, it seems not just likely but also appropriate that much scholarly effort will continue to focus on defining the scope and nature of unjust enrichment law. Which other parts of private law are most in need of the sort of scholarly attention that unjust enrichment law has recently received? Let me mention just two from a long and no doubt personal list. The first area does not have an accepted name - which should not be surprising but its origins lie - again unsurprisingly - in the heartland of the historical jurisdiction of equity. Attempts to describe this first area often resort to negative definitions: the category is those rules that, on the surface at least, are not based on either: duties not to harm others (tort), duties to do what one has agreed to do (contract), duties to return that which belong to another (unjust enrichment), or duties based in public policy (e.g., punishment). Within this broad ‘non22 category’ two sub-groups of rules deserve particular mention as they are both illustrative of the category and especially in need of scholarly attention. The first sub-group comprises those rules that appear (at first blush anyway) to uphold a duty to ensure the reliability of induced assumptions. The clearest example of this sub-group are the range of estoppel-based rules, such as promissory estoppel, proprietary estoppel, and so on. The second sub-group are those rules that appear based on a concern to prevent persons from exploiting or taking advantage of another’s vulnerability - whether that vulnerability is physical, mental, economic, or legal. I refer here to rules that appear (at first blush anyway) to express notions of unconscionability, good faith and abuse of rights, to the extent these notions are recognized in the common law. Each of the above sub-groups of rules is well-known, but their status and location within private law is uncertain. Some scholars deal with such rules simply by denying their existence while other scholars attempt to shoe-horn them into the existing categories - usually into contract but increasingly into unjust enrichment. I cannot defend the claim here but it seems unlikely that either of these approaches will be successful. Furthermore, it seems not unreasonable to suppose that each of these sub-groups of rules are part of a larger single category. They have common features aside merely from not fitting into the classic private law categories. For one thing, in the standard instance each operates not to base a new duty, but to deny or limit a duty that would otherwise exist. Unconscionability and estoppel, in their classic formulations, are defences to the assertion of rights. In addition, their application by a court is unusual in both cases in that they appear to involve an explicit or implicit judgment of the plaintiff’s motives. To know whether the sea captain who charges five times the going rate to rescue a ship in distress has acted unconscionably we need to know whether the captain was attempting to take advantage of the distressed ship captain’s vulnerability or whether, instead, the rescuer’s rate was bona fide meaning that it was the rate he would have charged had there been a market (say because he 23 detests performing rescues). To answer this question it is necessary to examine the rescuing captain’s motives. Similarly, to determine whether legal consequences should attach to an act that induced another to detrimentally rely it matters whether the inducing party actually knew not merely should have known - that the other party would rely. These assertions are highly speculative. But the need for such speculation is part of the reason for raising these rules as topics for research. Though estoppel and unconscionability are well-known, their conceptual structure is not. Their links to each other and to other areas of law, in particular to trusts, remains unclear and to a surprising extent unstudied. When lawyers try to explain these and similar rules they typically talk about ‘fairness’, but it is rarely made clear whether the same concept of fairness is in play in each case, and what, if anything, is its underlying structure. Some scholars will question the very possibility of providing a conceptual structure for a concept such as fairness and of the legal rules manifesting it. The relevant rules require judges to examine their ‘consciences’ and not much more can be said. Perhaps. But much the same was once said about what we now call unjust enrichment law, and before that of contract law. My second suggestion for doctrinal research is the area of over-lapping obligations. How should the law deal with a single set of facts that appears to give rise to more than one type of legal obligation? Are legal categories watertight? In the typical case, our concern is for the overlap between contract and tort or between contract and unjust enrichment, but other combinations are possible. Historically, the law’s response to potential overlap was to close off the categories, usually by means of rules that artificially limited the scope of recovery on noncontractual bases. Anglo-Canadian law has recently broken down some of these barriers. This, combined with the development of unjust enrichment, has raised a variety of difficult questions that common lawyers need to grapple with. In their classic article, The Reliance Interest in 24 Contract Damages,6 Fuller and Purdue noted that an award of damages following a breach of contract could seek to protect either a reliance interest, a restitutionary interest, or a promissory interest. They then asked which interest was most appropriate to protect. The question they did not ask - but which we now need to ask - is whether, on the reasonable assumption that two if not three of these interests are legitimate - parties should be limited in any way in their choice of the basis for recovery. In the typical case a breach of contract would seem to raise all three interests. Addressing questions of this sort requires a broad knowledge of the different varieties of private law obligations - something that is not always easily acquired in a North American law school, where few scholars teach more than one basic private law course. Fortunately, there are still published books such as those reviewed here to assist in this task. Stephen A. Smith* Associate Professor Faculty of Law, McGill University * I would like to thank Adam Kramer for his helpful comments on an earlier version of this essay. 6 (1936) 42 Yale Law Journal 52. 25