REVIEWS
| DOI | http://doi.org/10.1111/j.1468-2230.1996.tb02703.x |
| Date | 01 November 1996 |
| Published date | 01 November 1996 |
REVIEWS
Alan Brudner,
The
Unity
of
the Common
Law:
Studies in Hegelian
Jurisprudence,
Berkeley: University of California Press, 1995, xii
+
354 pp, hb
$35.00.
This book is
a
rich and complex study of various core areas of legal doctrine
as
interpreted through the dialectical approach of Hegelian legal theory. Brudner
addresses the still unresolved tensions and bifurcation between formalist and social
policy approaches within both legal doctrine and its analytical exposition. On the
one hand, there is the conceptual formalism of
a
strictly ‘black-letter’ approach that
-
under the guidance of an unacknowledged positivist metaphysics
-
views as an
end in itself the decontextual, descriptive exposition of law defined
as
an
abstract
system of autonomous rights over one’s person and property (pp 24, 31). On the
other hand,
a
rival law-in-context paradigm adopts
a
policy-oriented perspective
which considers adjudication not
as
a unique exercise in deductive legal reasoning
from precedent and analogy, but rather as reducible to the instrumental
administration and application of substantive policy imperatives. The latter are
oriented towards the objectivity of those social values and affirmative duties to
others that comprise the public good. Whereas the formalist paradigm is internal,
individualistic and rights-centred, its contextual antipode is collectivist (or
‘communitarian’) and social policy-oriented.
The author examines how the tensions between these two paradigms have
operated not only within judicial decisions and statute law, but also their exposition
and analysis by various legal scholars. He then shows that, despite the necessity for
the welfarist paradigm to emerge in response to the various contradictions of
formalism, in practice neither paradigm has managed fully to displace its opponent
(p 77). This explains why modem common law appears to
be
radically incoherent
and riven by irreconcilable conflicts between rival paradigms. Brudner assesses the
internal problems that result for those whose judicial or scholarly practice aims to
universalise either of the two rival perspectives. The Hegelian variety of dialectics
is useful owing to its capacity both to encompass and supersede the apparently
fixed status of polar opposites and, through immanent critique, to articulate an
underlying unity that otherwise would remain implicit (p
5).
Within property law, formalism recognises only the negative rights of individual
private property owners founded supposedly upon requirements of use and
possession that
are
pre-social in nature (pp 40-42). The one-sided quality of this
assertion has been both exposed and challenged by a welfarist paradigm in equity
which is oriented more towards distributive and substantive justice. This counter-
vailing tendency is variously expressed in the rationale behind reliance liabilities
judicially imposed, in a particularistic and
ad
hoc
fashion, upon owners for the
benefit of parties vulnerable to oppressive domination under the doctrines of
promissory estoppel, constructive trust and unconscionability (pp 37,
58-61,
67).
The current movement of negation by the welfarist model is at its most fully
developed in tort law. It clearly appears in the movement towards the partial or
complete replacement of wholly fault-based systems of compensation for accidents
with compulsory, social insurance schemes based upon welfare state entitlements
(pp 153-156, 200-204). The rise of this welfarist paradigm reaches its logical
919
Q
The Modern Law Review Limited
19%
(MLR
59:6,
November). Published
by
Blackwell Publishers,
108 Cowley Road, Oxford OX4
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and 238 Main
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Cambridge, MA 02142, USA.
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