Sarah Worthington, Andrew Robertson and Graham Virgo (eds), Revolution and Evolution in Private Law
| Author | |
| Date | 01 May 2019 |
| Published date | 01 May 2019 |
| Pages | 295-297 |
| DOI | 10.3366/elr.2019.0566 |
The published fruit of the eighth biennial conference on the law of obligations, these essays are arranged under its themes of “evolution and revolution” in private law. Given its more dynamic essence, it is perhaps unsurprising that the chapters appear at first glance from their titles to be more concerned with revolutions than they are with evolution. However, most chapters are tentative at best about recognising or identifying clear revolutions in private law, with most preferring the rather safer ground of evolution as both their account and objective.
Although there are potentially competing understandings of the term revolution, the touchstone of the text is “a general sense of ‘important change’”, by which the content of the terms “revolution”, “evolution” and “paradigm shift” are to be identified. The imperative of definitional flexibility to bring a rather disparate set of topics takes precedence over precision. The editors' characterisation of the “staccato findings” across the contributors' chapters acknowledges this, though they fairly advance an unsurprising (at least in the context of a Common Law, precedent-based, tradition) tripartite set of influences on legal development: the design of creative legal instruments by parties and their lawyers, raising proceedings in fact appropriate cases, and fostering the creation of new precedents by original and persuasive argument. Understandably, the focus and emphasis of the papers then split across a number of different ways to understand how the law and its actors react to such novel decisions, and indeed cast the net wider to take in codifications and the relative roles of judge and jurist. Taking the individual contributions, all are interesting, and many are novel or challenging.
Ibbetson cautions against too readily seeing revolution in changes to the conceptual building blocks of the law. True revolution would require alteration of “high-level general principles”, and private law is often more generally a story of continuity when viewed from a long historical perspective, as evidenced by a rich but admirably concise account of the development of ideas in the law of obligations in the European tradition. MacQueen's chapter coalesces around a reflection upon Harold Berman's
To continue reading
Request your trial