A Historical Introduction to the Law of Obligations

A Historical Introduction to the Law of Obligations

A Historical Introduction to the Law of Obligations

A Historical Introduction to the Law of Obligations

Synopsis

The English law of obligations has developed over most of the last millennium without any major discontinuity. Through this period each generation has built on the law of its predecessors, manipulating it so as to avoid its more inconvenient consequences and adapting it piecemeal to social and economic changes. Sometimes fragments borrowed from other jurisdictions have been incorporated into the fabric of English law; from time to time ideas developed elsewhere have, at leasttemporarily, imposed a measure of structure on a common law otherwise messy and inherently resistant to any stable ordering.In this book David Ibbetson exposes the historical layers beneath the modern rules and principles of contract, tort, and unjust enrichment. Small-scale changes caused by lawyers successfully exploiting procedural advantages in their clients' interest are juxtaposed alongside changes caused by friction along the boundaries of these principal legal categories; fossilized remnants of old doctrines jostle with newer ideas in a state of half-consistent tension; loose-knit rules of equity developedin the Chancery infiltrate themselves into more tightly controlled Common law structures. The result is a system shot through with inconsistencies and illogicalities, but with the resilience to adapt as necessary to take account of shifting pressures and changing circumstances.

Excerpt

Legal history takes many forms. This book is a history of legal categories, concepts and doctrines; the mechanisms used by lawyers to organize their thoughts. Such a work is of necessity both speculative and constructive. Legal ideas are not natural facts waiting to be uncovered, and even the lawyers who use them rarely take the trouble to formulate them explicitly. On the contrary, they are indeterminate and flexible, always at least potentially in a state of flux. Lawyers, if they put their mind to the matter at all, will commonly disagree about them. Even if there is a sufficient consensus among lawyers at any given time to enable us to identify a fairly solid core, there will always be forward-looking individuals proposing different models and structures.

However slippery it is to grasp, it does not follow that legal doctrine has no history. Quite the reverse. The fact that it is in its nature fluid and dynamic enables us to describe its history with more certainty than we can describe its state at any single point in time. It might still be argued that it is not worthwhile to do so. Only in the most uncontroversial cases will legal doctrine itself directly determine the outcome of actual litigation; judges have always had a sufficiently wide range of techniques available to them to ensure that they can reach a desired decision should they want to do so strongly enough. None the less, it is not irrelevant; even a sceptic will admit that the way in which a question is put and the form in which legal argument is couched will have some effect on the answer that is given. It operates as a restraint on judicial flights of fancy, it can be used to legitimate decisions. More importantly, so long as our conception of justice requires that like cases should be treated alike it provides the framework enabling lawyers to identify relevant similarities and differences between one case and another.

I hope that I have addressed at least some of the questions that historians of English law have traditionally found important. Inevitable limitations of space and time have meant that I have glossed over many points of detail and have simplified complex stories. Nor has it been possible even to touch on the full range of arguments put forward by others. The closer the work approached the twentieth century, the stronger the feeling of helplessness in the face of the huge mass of material. All I can hope to have done is to waymark a path through the thickets, pointing out a few of the more interesting sights along the route.

Legal history is too important to remain within the domain of specialist legal historians. The structure of modern law is too heavily dependent on . . .

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