Examining the Law Syllabus: The Core

By P. B. H. Birks; Society of Public Teachers of Law (London, England) | Go to book overview

8. Substance and Method in Company Law
HARRY RAJAK
A.1 The Breadth of Company Law
ONE problem which is posed in the teaching of company law is the potentially enormous size of the syllabus. The content of Company Law has grown dramatically in the generation or so that it has been an acceptable subject for a law degree course. In the result, a course in company law may quite legitimately take account of.
(a) a wide range of topics , in most of which there have been recent developments, but in which the unity of the subject has led to the re-integration of the older authorities and opinions rather than to their replacement.
(b) an influential movement advocating the teaching of law in context (i.e. with appreciation of the economic, political and social background against which legal developments take place). Company Law has been readily susceptible to this movement given, for example, the growth in importance of such issues as co-determination, the practice of companies acting as sponsors of public and communal events and the use that can be made of companies to disguise individual interests and assist in tax avoidance schemes.
(c) an historical perspective. This may not be popular among teachers of Company Law, but pedagogically its credentials are indisputable. A sound grasp of the concept of limited liability or of ultra vires or corporate personality, for example, necessarily entails some examination of the history of company law.
(d) comparative and international developments , which may now be said to be of special importance given the European Community connection. UK Company Law has long been enriched by its widespread reception and development by the British Commonwealth. This comparative dimension was thus always been an important aspect of understanding Company Law at an advanced level.

I find it useful to divide these between content which refers to (a) above and context which refers to (b), (c) and (d). The latter three categories do, of course, have content, but the purpose of the inclusion of that content in a company law course is the better understanding of those topics whose description and analysis fall within company law.

European Community company law, for example, is UK company law in its Regulations and Directives which govern issues and topics within company law and would fall under (a). The same would be true for Commonwealth decisions which illustrate most effectively a particular point or principle in a given topic in the syllabus. Examples here would include the New Zealand case of Re Manurewa Transport Ltd,1 the Canadian case of Canadian Aero Service Ltd v. O'Malley2 and the South African case of Grad- well (Property) Ltd v. Rostra Printers Ltd.3

Context, on the other hand, would dictate the inclusion of such authorities as the South African case of Swerdlow v. Cohen,4 which directly concerns the problem raised in Bushell v. Faith,5 but which suggests a different answer to that problem and the Australian case of Peter's American Delicacy Co Ltd v. Heath.6 The latter demonstrates, in the context of alteration of the articles, a more profound analysis of the problem of when the majority cannot have its way than any UK case on the same issue.

The content/context issue is not, of course, simply about decisions of the courts. These are simply examples to try to illustrate the distinction between content and context. A similar illustration can be given by using statutory material, where by definition a provision of a UK statute is part of the content of UK company law and a provision of a foreign statute is not.7

It is clear to me that some major choices have to be made in devising a company law course. A crude formula would be more content less context and vice versa. My general view is that any course in company law should consist of both content and context. This would, I think, be uncontroversial as far as a course for an academic law degree is concerned. It might, however, be considered inappropriate for the preparation for candidates for professional examinations. This divide is of considerable significance in English legal education and merits a brief discussion at this point.

In a passage under the heading of 'Duality of English Legal education', the influential and well

____________________
1
[ 1971] NZLR 909.
2
( 1974) 40 DLR (3d) 371.
3
1959 ( 4) SA 419.
4
1977 ( 3) SA 1050.
5
[ 1970] AC 1009.
6
( 1939) 61 CLR 157.
7
Provisions elsewhere (such as ss 19 & 20 of the New South Wales Companies Act 1961 and s 36 of the South African Companies Act 1973) which limited or excluded the ultra vires doctrine were often included in UK company law syllabuses during the long drawn out debate on this issue in this country.

-47-

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