Reasons? For Restitution?
| Author | Frederick Wilmot‐Smith |
| Published date | 01 November 2016 |
| DOI | http://doi.org/10.1111/1468-2230.12234 |
| Date | 01 November 2016 |
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REVIEW ARTICLE
Reasons? For Restitution?
Frederick Wilmot-Smith∗
Charlie Webb,Reason and Restitution, Oxford: Oxford University Press,
2016, 272 pp, hb £60.00.
THE BOOK
The law of unjust enrichment is a subject of intense doctrinal debate. While it
has received increasing theoretical attention, deep disagreement remains about
its conceptual and normative roots. Charlie Webb’s Reason and Restitution,1the
product of many years’ work, provides a feature-length theoretical discussion of
mistaken payments, generally taken to be a central case of unjust enrichment.
We should take it seriously. I found the book’s arguments engaging and thought-
provoking, even when I disagreed with its conclusions; I would recommend it
to anyone interested in private law theory or the law of unjust enrichment.
Unlike so many of today’s monographs, it is difficult to pin the book
down to one big idea. Each chapter makes interesting claims about theory or
law. The central themes of the book are its methodology and its account of
the interests at stake in mistaken payments cases. Webb’s principal aim is to
understand what reasons justify restitution of mistaken payments; only then,he
claims, can we ask what other claims belong in this group, or whether those
claims belong under the banner of ‘unjust enrichment.’ I will first examine
some general issues in private law theory’s methodology, explaining why Webb
sees things as he does - as will become clear, that is the ‘reasons’ half of my
title. In the second half of the article, I turn to Webb’s substantive claims about
mistaken payments; that is the ‘restitution’ half of my title.
METHOD
The methodology of private law theory has become a topic of quite some
debate. Webb’s own approach is, as I will explain, unorthodox. Perhaps for
that reason, he provides a substantial defence of his approach; he may have
feared being dismissed as eccentric if he charged ahead with the substantive
claims without the methodological throat-clearing.2
∗All Souls College, Oxford. I am grateful to Robert Stevens for discussions on some of the ideas
developed in this review and also to Charlie Webb for his extremely helpful comments on a draft.
1C.Webb,Reason and Restitution (Oxford: OUP, 2016).
2 In an ideal world, this discussion would be a silent prelude to the main theses. Not only is the
treatment of methodology curtailed by the substantive ambitions of the book, the substantive
C2016 The Author. The Modern Law Review C2016 The Modern Law Review Limited. (2016)79(6) MLR 1116–1136
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Frederick Wilmot-Smith
I will discuss three distinct issues. The first is the nature of legal classification.
This discussion is important to explain why Webb approaches things as he
does. The second is the value of a classificatory category for legal arguments:
if we can say that some norm is part of (for example) the law of unjust
enrichment, what (if anything) follows? I join Webb in rejecting classificatory
categories as tools of legal reform, but also suggest that his own account may
face similar difficulties. Finally, I consider a meta-theoretical issue: when we
do this kind of legal philosophy, what enterpr ise are we engaged in? Here I
am more openly combative with Webb. Mine is, however, a sectarian view;
many will reject my premises. I aim therefore to bring out some more general
features of Webb’s project, and legal philosophy in this domain.
CLASSIFICATION
Three types
After Lipkin Gorman vKarpnale, it has become doctrinal or thodoxy to refer
to the ‘law of unjust enrichment.’3This presupposes that the phrase ‘unjust
enrichment’ labels, as Webb puts it, ‘a distinct ground of legal claims and
liabilities’ (3). Many would begin their book by identifying some set of claims
which, pre-theoretically, is part of the law of unjust enrichment, and would
then ask what, if anything, unites those claims. Webb starts instead where
Peter Birks once did, with mistaken payments. To see why, I need to say a
little more about methods of classification and where Webb’s own model fits
in. There are a number of mutually consistent ways in which legal norms
can be grouped together. Each will highlight different features of the law.
The approach adopted will affect which norms belong in the group. For
example, we could group together the law according to some factual context:
‘computer law’, ‘employment law’, etc. This will be a successful classification
so long as it assists in the presentation of the law. I will distinguish three types
of classification; these, as I will go on to explain, have all been deployed to
understand ‘unjust enrichment.’ (Webb’s preferred model is the third.)
The first way in which a set of claims can be distinguished is according
to their normative shape. I use the term ‘normative shape’ as an umbrella to
group together two related, but distinct, methods. One groups legal norms
according to the type of act they require, as where scholars g roup gain-based
responses or injunctions.4Another groups norms according to the form of
the legal relation instantiated, as where scholars distinguish duty-imposing
arguments are themselves curtailed by the methodological discussion. Ours is, alas, not an ideal
world.
3Lipkin Gorman vKarpnale Ltd [1991] 2 AC 548 (HL).
4 For example, J. Edelman, Gain-Based Damages: Contract, Tort, Equity and Intellectual Property
(Oxford: Hart, 2002); S. Gee QC, Gee on Commercial Injunctions (London: Sweet & Maxwell,
6th ed, 2016). I hesitate to call this the remedial response: such a category could group primary
obligations, too.
C2016 The Author. The Modern Law Review C2016 The Modern Law Review Limited.
(2016) 79(6) MLR 1116–1136 1117
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