What Commonwealth Jurists Can Learn from the New Private Law — Malcolm Lavoie

Post by guest blogger, Malcolm Lavoie, University of Alberta Faculty of Law

It is impossible to explain the “new private law” to non-American jurists without first describing a little bit of history: the rise of legal realism in the 20^th century, with its hostility to formal doctrine, and the subsequent emphasis the American legal academy has placed on looking beyond private law doctrine to understand what is really going on, in economic, political, or other terms. As alluded to by Henry Smith in a recent post, the dominance of “external” approaches to law in private law scholarship has been a uniquely American phenomenon. In civil law jurisdictions, as well as in the Commonwealth, private law scholarship has retained its focus on legal doctrine, though it is sometimes complemented by functionalist approaches of various stripes. If the central aim of the “new private law” is to encourage approaches to scholarship that “take law seriously”, one might rightly ask what it has to offer to jurists from, say, England and the Commonwealth, where scholars never really stopped taking law seriously.

The answer, I think, is quite a lot, though perhaps not quite the same lessons that American jurists will take from the project. For one thing, while many Commonwealth jurists harbour skepticism or outright hostility towards approaches to law that bypass formal doctrine in favour of analyzing some set of underlying interests, they have seldom been called upon to articulate reasons for this attitude. As some of the responses to this blog have demonstrated, any attempt to understand private law on its own terms in an American context has to justify itself, something doctrinal scholarship in the Commonwealth simply has not had to do very often.

There is a sense in which constant challenges can help build up intellectual antibodies and provide for a more robust defence, while consensus can breed complacency. Commonwealth scholars can find among the American “new private law” scholarship some of the best arguments for using the basic doctrinal structure of the private law as a starting point for analysis, for instance Henry Smith’s efforts to explain the contours of property law in terms of information costs. Having a sense of why traditional private law concepts are worthy of study is important. It can help justify the enterprise of doctrinal scholarship to new generations of law students, who are particularly susceptible to reductionist narratives about what is “really” going on when judges invoke legal concepts. It may also help scholars who do adopt external approaches avoid the excesses that characterized some American realist, economic, and critical legal thought in the 20^th century.

Another potential source of insights for Commonwealth scholars lies with the interdisciplinary synthesis that is at the heart of the new private law project. As the previous posts on this blog have made clear, the goal of the new private law movement is not to pretend that the 20^th century didn’t happen and return to the classical formalism of the 19^th century; it is rather to seek to understand the structures of private law in a way that may borrow from economics, sociology, analytic philosophy, and other disciplines, but that uses existing doctrine as a baseline for analysis.

Having good models for how functionalist scholarship can be incorporated into doctrinal analysis without disregarding existing legal structures is important. While “external” approaches to private law have never dominated in Commonwealth jurisdictions, they have had influence. The problem is that without a way of synthesizing existing doctrine with the demands of functionalist analysis, Commonwealth jurisdictions’ adventures in functionalism, though relatively few in number by American standards, have been sporadic and unpredictable. Courts often seem caught between an inchoate sense of deference to traditional doctrine, on the one hand, and the lure of law reform that sweeps away the cobwebs, on the other.

Two examples may help to illustrate what I mean. The first is the English and Canadian courts’ back and forth over the role of “policy” factors in assessing when a new duty of care should be recognized. A major drawback to a policy-based approach has been an inability to adequately explain what “policy” factors should matter, and how they are linked to the existing structures and normative commitments of negligence law.

A second and much less well known example is the decision by the Supreme Court of Canada to do away with the rule that specific performance is presumptively available in contracts for the sale of land. After a brief analysis that can be described as functionalist, the court essentially concluded that the rule was an unjustified appendage of the common law and that monetary damages would be sufficient where land is not sufficiently “unique”. This, however, has had some unforeseen negative consequences that are linked to the failure to consider the structure of real vs. personal property, and the potential interactions with the contractual duty to mitigate damages. I think greater attention to the project of synthesizing traditional doctrinal scholarship with functionalist methodology might have been helpful in assessing each of these forays into functionalism.

There is obviously much more to be said on this topic, and I would be quite interested to hear some of the thoughts of other non-American readers of this blog.