Interpretive Legal Theory and the Academic Lawyer
| DOI | http://doi.org/10.1111/j.1468-2230.2005.00540.x |
| Author | Charles Rickett,Allan Beever |
| Date | 01 March 2005 |
| Published date | 01 March 2005 |
REVIEWARTICLE
Interpretive Legal Theory and the Academic Lawyer
Allan Beever
n
and Charles Rickett
nn
Stephen M. Waddams,Dimensions of Private Law: Categories and Concepts in
Anglo-American Legal Reasoning, Cambridge: Cambridge University Press,
2003, xxiiiþ247pp, hb d55.00, pb d19.9 9.
INTRODUCTION
StephenWaddams’Dimensions of Private Law
1
is an importantand timely book.But
this is not because the argument of the book succeeds. Rather, it is because the
book’s thesis isbased on a signi¢cant and widespread error that must be identi¢ed
and eliminated. Moreover, the bookexhibits this error in a most instructive man-
ner: itdoes not merely found itself on the error, as many books and articles do,but
it also draws out most of the important logical conclusions that £ow from it.
Thus, although in this review we focus on Dimensions of Private L aw, our criticism
is not aimed at Dimensions of Private Law alone, but at the assumptions that this
book exhibits, assumptionswhich are shared by many other legalacademics.
Dimensions ofPrivate Law is a sustained critique of what its author perceives to be
intellectual imperialism on the part of legal theorists.
2
InWaddams’ view, distor-
tion of legal historyis characteristic of muchlegal theorising.This is because legal
theorists tend to misdescribe cases in order to make them ¢t with the theorist’s
preferred account, or toreject cases that cannot be made to ¢tas ‘marginal, insig-
ni¢cant, anomalous, or unprincipled’, when they are not.
3
Examplesof the distor-
tion created by theory includethe idea that the lawcan be divided intotaxonomic
categories such as consents, wrongs, and unjust enrichments,
4
or that the private
law is a system of corrective justice
5
or of economic e⁄ciency.
6
These claims,
according to Waddams, are inconsistent with much of the historical evidence.
Accordingly,Waddams’ task is to demonstrate
n
Faculty of Law,TheUniversity of Auckland.
nn
T.C. Beirne School of Law, The University of Queensland. Aversion of this paper was presented at
The University of Melbourne at the Obligations II Conference on 15 July 20 04.Weare grateful to the
(anonymous) refereefor comments that have helped usto avoid several ambiguities.
1 Stephen M. Waddams, Dimensionsof PrivateLaw: Categories and Concepts in Anglo-American LegalRea-
soning (Cambridge: CUP, 2003) (hereinafter,‘Waddams’).
2 This term is used here to include all those who attempt a conceptual understanding of the law,
including Birksian taxonomists, correctivejustice theorists, and some law and economics scholars.
3 Waddams,21^22, 222.
4 Cf P. Birks, AnIntroduction to the Law of Restitution(rev’d edn, Oxford: Clarendon Press, 1989) and
UnjustEnrichment (Oxford:OUP, 2004).
5 Cf E. J.Weinrib,TheIdea of PrivateLaw (Cambridge, Mass: HarvardUniversity Press,1995).
6 Cf R. A. Posner, EconomicAnalysisof the Law (NewYork: Aspen Law & Business, 5th ed,1998).
rThe Modern LawReview Limited 2005
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2005) 68(2)MLR 320^337
the failure of any organizational scheme or of any single or simple explanation
either to describe the law that preceded it, or to supply a workable guide for deci-
sions thereafter. This failure suggests that the interrelation of legal concepts has
involved a greater complexity than can be captured by organizational schemes,
maps, or diagrams,or by any single explanatory principle.
7
In order to establish this claim,Waddams examines in chapters 2^7 the historical
development of the law in six areas: the development of speci¢c performance in
contract and liability for inducing breach of contract, liability for economic loss,
the role ofreliance in the lawof obligations, liability for physical injury, disgorge-
ment, and domestic obligations.Then, in chapters 8^10, he considers the interre-
latedness of the law of obligations as a whole, and the relationship between
obligations and property, and between public interest and private right. In each
of these chapters,Waddams’task is to demonstrate that the claims made by legal
theorists in respect of these areas distort historical reality. In particular,Waddams
makes ¢ve central claims. These arethat the accounts of law given by interpretive
legal theorists: are inconsistent with the lack of consensus in law; cannot account
for legal change; falsely posit the existence of exhaustive and mutually exclusive
legal categories; obscure legal complexity; and misdescribe the nature of legal
decision-making. However,Waddams does not attack legal theory per se, but only
the perceived pretensions of legal theory to capture legal history. He does not
maintain that theorists are barred from criticising decisions of courts, but he does
insist that the validity of such criticism‘depends on the independently persuasive
force of the principles to which it is asserted that [the decision] ought to have
conformed, something thatcannot be tested by historical evidence ^ forexample,
principles of ethics, utility, logic, elegance, or conformity with a philosophical or
political system or with other legal systems ancient or modern’.
8
Hence, though Waddams rejects the claims of current legal theory, he is pre-
pared to accept that ‘[t]he future might, no doubt, be di¡erent: historical evidence
cannot exclude the possibility of future attainment ofgreaterorder and precision
(though it might be relevant to an assessment of its probability)’.
9
According to
Waddams, there is, or ought to be, ‘a simple dichotomy in legal analysis between
description and prescription’,
10
and it is incumbent on theorists to respect that
dichotomy. Theoryhas its place, but it must alsoknow its place and cease to make
unsupportable claims about legal history.
INTERPRETIVE LEGALTHEORY
If Waddams were right that the legal theorists he cri ticises are engaged in prescrip-
tivetheory and that those theorists interpretlegal history to ¢t their theories, then
his criticisms would certainly be justi¢ed. However, neitherclaim is correct:these
legal theorists are (usually) not doing prescriptive theory, nor are they using pre-
7 Waddams,vi.
8 Waddams,22.
9 Waddams,3.
10 Waddams, 222.
Allan Beever and Charles Rickett
321rThe Modern LawReview Limited 2005
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