The Jersey Law Review - February 2002

BOOK REVIEW

ENGLISH PRIVATE LAW edited by PROFESSOR PETER BIRKS QC, DCL, LLD, FBA.  Published by Oxford University Press, 2000, £145.

Introduction

This is a remarkable work, for many reasons.  In essence it is a detailed summary, in two volumes and running to some 1,700 pages, of English private law.  Unlike other works of this kind, the plan of this work is explicitly based on the Roman law plan of Gaius, the great scholar and teacher of Roman law who lived in the second century AD.  Gaius was not - so far as we know – a practitioner, and he wrote his great Institutes with the needs of students in mind.  Gaius’ plan involved a threefold division of law, namely Persons, Things and Actions.  But, like Justinian’s later Institutes of Roman Law, in the present work there is also an introductory section on the sources of law, and moreover the part dealing with “Things” is divided into two, namely the law of property and the law of obligations (as invariably happens in modern civil codes).  So there are five parts.  Thus this work represents a serious attempt to rationalise English private law along civilian principles.  

It is indeed apposite  that the general editor, who in addition to co-writing one of the 19 chapters has in fact contributed a lengthy introduction to justify this scheme of things, is the Regius Professor of Civil Law in the University of Oxford, Peter Birks.  Although Professor Birks is a Romanist, he is also a formidable English private lawyer, an expert in the law of trusts, but perhaps best known for his exceptional structural work in what I thought was to be called the law of restitution,^[1] but which (according to the title of Chapter 15) is now to be known as “Unjust Enrichment”.^[2]  Indeed, it is largely his theoretical approach to what previously was regarded as a collection of remedies and other bits and pieces falling outside traditional common law subjects, such as contract, tort and equity, which has in effect forced the law of restitution into the syllabuses of English law schools and into the minds (if not into the hearts) of practising English lawyers. 

His An Introduction to the Law of Restitution^[3]  was an immensely challenging book to read, and – for me at least - even more so to understand.  But it gave intellectual coherence to a subject which, although largely gathered together within the bounds of one volume by Lord Goff of Chieveley and Prof Gareth Jones QC in their classic work, The Law of Restitution^[4], did not really take on a life of its own until Professor Birks had imposed his own theoretical approach onto it.  This itself involved a great deal of reference back to Roman law principles.  And why not?  Those principles were there to be had for the asking, and Professor Birks was very familiar with them.  They had worked very well, it could be said, in civilian countries, so why not here?  Conspiracy theorists might naively suspect that Professor Birks, having now licked restitution into the sort of shape that he would like to see, is now attempting to do the same thing to the whole of English private law.  Or at least to produce a cunabula legum.  Well, you might think so; I couldn’t possibly.

Professor Birks’ argument is that there is now too much law: statutes, regulations, orders in council, European directives, cases from the House of Lords, the Court of Appeal, Europe (Luxembourg and Strasbourg), and so on.  And all – but all – available in the ever-proliferating series of law reviews, law journals and law reports.  Above all, now available at – or coming shortly to – a computer near you.  It is impossible to keep up.  So we need a plan.  A Roman law plan, in fact. 

Well, the complaint is not new from Professor Birks^[5], and nor is it new in itself.  The Elizabethan lawyer William Fulbeck referred to “the ocean of reports, and such a perplexed confusion of opinions”,^[6] available barely a century after the introduction of printing.  The question, however, is why a theoretical plan is needed at all, Roman or otherwise, as long as the relevant material is accessible in some reasonable fashion.

It is after all a fact that English works of this sort, dealing with the entirety of English private law, have not normally been based on any kind of theoretical plan, let alone this one.  The major exception is the Commentaries of Blackstone, to which I will return below.  Instead, in English private law these works have largely been arranged in an alphabetical order for ease of reference.  The (alphabetical) abridgements of the Year Books of Statham, Pynson, Fitzherbert and Brooke date from the late fifteenth and the sixteenth centuries.  Others have followed, including Bacon’s Abridgement of the Laws of England, first published in 1736.  The most recent and perhaps the most comprehensive example of this kind of treatment of the law today is to be found in Halsbury’s Laws of England.^[7]  There can be scarcely any solicitor’s practice in this country which does not possess a set of Halsbury’s Laws, nor any barristers’ chambers likewise. 

One or two famous writers have attempted to summarise English law in a non-alphabetical way, but they have not normally used the Roman law plan.  For example, Coke wrote his Institutes in four volumes, dealing with the law of land, the statute law, the criminal law, and the law relating to the courts.  Of these only the last has any kind of parallel with the plan of Gaius.^[8]  And although Bracton (13th century), who was much more influenced by Roman Law, put forward Gaius’ plan in the introduction to his treatise on English law, in writing the text itself he was obliged to disregard it, as “the English law of his day could not very conveniently be grouped under those heads”.^[9]  Most of the substantive law is revealed in discussing legal procedure (i.e. Actions), which just demonstrates the fundamental difference between common law and civil law.  There is even less evidence of Roman law planning in Fleta,^[10] Britton,^[11]the Mirror of Justices^[12] and Doctor and Student.^[13]

Nor should it be assumed that only common law writers ignored the civilian plan of Gaius.  The writers on the Coûtumes of northern Europe (including Normandy) wrote about the matters which most concerned them and their readership, whether or not it conformed to Gaius.  Usually – Le Rouillé and Terrien are good examples - it did not.  The plans of Poingdestre’s and Le Geyt’s works on Jersey law, and in more recent times that of Le Gros, are likewise not based on the Roman model.

We may ask why this is so.  So far as concerns English law, the fact is that it has been built up as one might build a mosaic, a piece at a time, case by case.  It all depended on procedure, rather than substance.  Ironically, this is the way that Roman law was also largely built, by decisions of the praetor.  But the modern Europeans received it pretty much all in one go, with the rediscovery of a complete copy of Justinian’s Digest in the 12th century.^[14]  And the pragmatic mode of construction of Roman law is reflected in the way that the Digest is compiled.  There is no theoretical plan along the lines of that of Gaius, or even that of Justinian’s own Institutes.  It is all of a jumble.  So too English law is neither thematic nor organised on any plan.  Accordingly, in the absence of a specialist textbook or monograph,^[15] the only way to enable practising lawyers to find easily material which relates to the subject that they want in a comprehensive encyclopaedic work of this kind is to arrange the material in a non-thematic but intuitively organised fashion.  For English lawyers, who could read, the obvious form of arrangement was alphabetical.  And, although the writers on the Coûtumes often arrange their material differently, some of them – such as Hoüard - use the alphabet as the basic scheme.

It is true that Blackstone^[16] organised his work differently, and that the influence of Gaius’ plan can be seen in it.  The first three books of his Commentaries on the Law of England^[17] dealt with the law of persons, the law of things, the law of obligations and the law of actions.  But Blackstone’s Commentaries also include public law, which for him included constitutional law, administrative law, criminal law and so on.  Birks’ work restricts itself to private law (although a similar work on public law is planned for 2003).  Consequently this work deprives itself of any cross-fertilisation between public and private law, and means that it cannot really get any human rights perspective, a significant shortcoming since the enactment and coming into force in England and Wales of the Human Rights Act 1998.  Moreover, Blackstone departs significantly from Gaius in distinguishing sharply between rights and wrongs.  The laws of persons and things are dealt with as the rights of persons and the rights of things.  But the law of obligations, procedure and crime is dealt with as private wrongs and public wrongs.  This division into rights and wrongs has no place in Gaius.  At times Professor Birks depicts Blackstone almost as some kind of civilian fifth-columnist, working behind common law lines.^[18]  I am not so sure.  He was a pragmatist.  He took the bits he thought might work, and had no hesitation in discarding the rest.  If anything, he was a double-agent.

Contents

As already stated, the work is divided into five parts.  The first is Sources of Law, with just one chapter (bearing the same title).  Part II, The Law of Persons, has two chapters, Family and Companies and other Associations.  Part III, titled The Law of Property, is divided into four chapters, namely Property: General Principles, Security, Intellectual Property, and Succession.  That, with an index, completes the first volume of the set.  The second volume opens with Part IV, The Law of Obligations, comprising Contract: General Rules, Agency and Representation, Sale of Goods, Carriage of Goods by Sea, Employment, Bailment, Tort, and Unjust Enrichment.  Lastly there is Part V, Litigation, which consists of Insolvency, Private International Law, Judicial Remedies, and Civil Procedure.  There are a bibliography and a further index to round off the volume.

Authorship

The advertising material for this work focuses heavily on the needs of practitioners.  We will come back to the target markets later on.  But this market positioning is at odds with the authorship of the work.  The authors are without exception academic^[19] lawyers,^[20] mostly from or with a connection to Oxford University (nothing wrong - or even surprising – with that, of course).  We all know the desperate problem for law publishers: practitioners are the largest, most lucrative market.  But practitioners want to buy books which are, well, practical, which help them in what they do every day.  However, the people who can best provide that are those who have practised or are in practice themselves.  Yet they are the very people who do not have the time to write.  So the law publisher turns to the academic lawyer, who has – or at any rate, in the old days before government bureaucracy and research assessment exercises took over, had – the time to write, and the academic lawyer, who because of the absurdly low salaries paid to him or her always needs the money, will normally oblige.  And in a case where a book is being written for students, or for fellow scholars, to advance or contribute to a debate, or to publish the fruits of research or other scholarship, then of course academic lawyers are the best people for the job. 

But here, as I have mentioned, the market positioning is otherwise.  The publishers, and those whom they have persuaded to write in support of the work, and whose names appear on the publicity material (including a law lord, two QCs and a senior solicitor) emphasise the needs of practitioners.  It is not my purpose here to suggest that the authorship is not up to the job.  Far from it.  They distinguish themselves in the scholarship and accuracy that they bring to their writing.  I would be hard pressed to find any proposition of law which I could confidently state was wrong, at least at the time of writing.  But that is not the point.  The style of the writing is frankly very academic.  It is in parts exactly like a student text book.  In other places, it is slightly more terse, but no less impractical. 

This is noticeable particularly in Part V of the work, entitled “Litigation”.  I will come back to the categorisations in a moment, but in litigation, of all subjects, practical input is essential.  Chapter 19, on Civil Procedure, is a rather dry account of the litigation rules in England after the Woolf reforms.  It is dry because the author does not give the sense of knowing how all these rules fit together, what it is really like to use them in practice, and what in fact you actually do – skirting round the rules – to produce the right result for your client. The detail of the rules set out is – or was at the time of writing – largely accurate (many of the rules have of course since changed, and new pre-action protocols have been introduced, Obtaining Hospital Medical Records, Construction and Engineering Disputes, Defamation; others are in draft form).  But, as written, the chapter is of virtually no use to a practising English litigation lawyer.  And anyone else, English non-litigation lawyer, foreign lawyer or student, reading it would get a seriously misleading picture of how the English civil justice system operates in reality.  In the next edition, this chapter must be written by a litigation practitioner, or, more likely, by two or three such practitioners.

Target readership

Similar points could be made, with more or less force, in relation to other parts of the work, but before I come to discuss the structure generally I want to return for a moment to the question of the target readership.  As I have already said, the marketing seems to aim the work at practitioners.  The problem is that nearly all practising English lawyers have access to Halsbury’s Laws of England, which for their purposes is far superior (because much, much bigger and more comprehensive, because written by practising as well as academic lawyers, because more established, because – and this is the important one - it is arranged alphabetically with marvellous cross-referencing, so that it is very easy to use).  Who else is left?  There will be some practising lawyers who do not have access to Halsbury’s Laws.  There may even be those who, as one of the lawyers writing in support of the work says, may turn to it as the “first port of call for busy practitioners wanting to remind themselves about the underlying legal concepts”, but in my experience busy legal practitioners rarely have time to do any such thing.  And if they do have time, then my guess is that they will almost always prefer to consult a handbook on how you do it in practice, rather than an academic treatise fitting into a Roman law plan.  So this market will be modest.

A second target area identified by the marketing is that of law students.  Yet this work is too short on each topic to be a substitute for their textbooks, and at the same time too dense to be of value as an introductory run through at the beginning of their studies, when they are unable to see the wood for the trees, or to distinguish the important from the unimportant.  And £145 is a lot for a student to pay for something that may prove a white elephant.  There is a danger that this will become another of those big books in the corner of the university law library which is not opened from one year to the next.^[21]  I respectfully consider that this market is likely to prove illusory.

This brings me to the last target audience which I can see, namely foreign lawyers.  Here I think the work could be very useful indeed.  Foreign lawyers fall into two categories.  There are those who have legal systems based on English common law, and those who do not.  In the former category are lawyers in Commonwealth countries and jurisdictions, including the offshore world, such as Jersey.  It is true that much of Jersey’s law is based ultimately on Norman customary law, but in the 21st century sufficient of it is drawn from principles of English law to make my general point valid even in respect of this jurisdiction.  Lawyers in these places do not always need to know what is the current English law on a particular point.  What they very often need to know, however, is what the general principles of that area of law are, particularly the common law areas, which have not been messed about with by the Law Commission and/or Parliament.  Some of these lawyers have access to Halsbury’s Laws, and I dare say that, where they do have such access, that work will continue to be the major source of reference on English law for them.  But where those lawyers do not have such access – and there are lots who do not – then this work is a handy alternative.  It is a lot shorter, so much more portable, and a fraction of the price.  Jersey (and Guernsey) lawyers, place your orders now.

For the other kind of foreign lawyer, however, a rather different picture emerges.  For the lawyer whose legal system is based on the civil law, the Islamic law or some other system, this work in its present form makes no concessions.  The contributions are all written from the point of view of the common lawyer, and an immense amount of common law ideology and general approach to legal thinking and reasoning is taken for granted.  Surprisingly perhaps, given the explicitly Roman law plan of the work, there is no attempt at all within the chapters to impose any kind of civilian structure – or even (and this is even more surprising) any kind of similarity of structure between one chapter and another, so that the lawyer from another jurisdiction, not understanding the common law system very well, and whose first language probably is not English anyway, having at least struggled through one of the chapters on a substantive topic, can then find his way more easily around the next.  There is one exception to this non-civilian structurisation, and that is chapter 15, on Unjust Enrichment.  This is co-written by Professor Birks, and it shows.  The chapter begins with an introductory section on nomenclature which sets out a different ideological stall right at the outset.  Practitioners will find this intensely irritating, but civil lawyers will find it fascinating, if perhaps (from their perspective) a little primitive.  The theoretical underpinning of the subject is clearly and concisely explained, and then the chapter goes on to set out the various elements in Unjust Enrichment claims and defences in a civilian, and often syllogistic way.

Another difficulty for non-common law foreign lawyers in using this work is that there is no attempt made by the authors as a general rule to compare the substance of the law which they are explaining with any other legal systems, and in particular not the civil law systems.  Nor is there any attempt to explain matters in a comparative or introductory way.  Instead, for the most part, the reader is plunged into discussion of substantive law rules without more ado.  It is true that this is not a work on comparative law.  And the authors show themselves (with one or two distinguished exceptions, including Professor Birks) to be generally unaware of the comparativist dimensions, and of the needs of foreign lawyers.  But this can be – must be – put right in the future. In my view the market for foreign lawyers is the best of the three markets which I have identified.  The work will market itself as it stands to the common law foreign lawyers, but it requires a lot of work to make it more useful to the non-common law foreign lawyers.  If in subsequent editions this work can be successfully carried out, then it will not only be the stunning achievement which some of its supporters claim it already to be, but it will actually be very useful to a significant branch of the legal fraternity.

Structure

I turn now to consider the structure of the work in some more detail.  I have already commented on the civil procedure chapter above, and I will say no more about that.  As I said above, I have not been able to detect any serious shortcomings with the substance of the text, in the sense of finding propositions of law that were wrong, or not supported by authority.  Given the distinguished authorship, it would be surprising if it were otherwise.  The points that do occur to me, in considering the substance of the text, lie rather more in the arrangement of that text, and its compliance with the Roman law plan already discussed.   The following comments will, I hope, be taken account of in future editions.

For example, the chapter on insolvency is in Part V of the work, “Litigation”.  Insolvency is not just litigation.  Indeed, in most insolvency cases, there is never any contentious application to the court.  Why is insolvency therefore put in this part of the work?  Gaius and Justinian both treated it as part of the law of property. Could it be because Gaius’ concentration on “Actions” needed supporting by the addition of more material?  I do not know.  But I do know that most English insolvency lawyers, if asked to choose from the various parts of the book (sources of law, persons, property, obligations and litigation), would probably plump for either persons or property, not litigation.  It is incidentally to be noted that succession law is dealt with as one of the chapters in the part dealing with property, and in the civil law systems both inheritance of property on the death of a person and the passing of property to another by reason of insolvency are regarded as matters of “succession”.  If insolvency is to be treated as “litigation”, merely because an order of the court is involved, then why not also divorce, adoption, family provision and unfair dismissal, to mention but four topics at present located elsewhere than Litigation?  Indeed, the third and fourth of these topics involve highly contentious litigation, and the first and second may still occasionally do so.  In my view the better place for insolvency (on Gaius’ plan) is in the law of property.

The chapter on companies and other associations, which is currently found in Part II, the law of persons, also seems to be strangely located.  It deals with companies, partnerships, and various unincorporated associations.  To the extent that it deals with organisations that have legal personality, there is some point in discussing them here.  But various of the associations discussed, such as partnerships, unincorporated associations, and even some kinds of trusts, are not legal entities at all, and there being included here is not obviously justified.  Indeed one can make just as good a case for including all of them, including companies, within the law of obligations (Part IV of the work) on the basis that companies, partnerships, associations and so on all involve the agreed assumption of rights and obligations between various parties.    On the whole, the law of persons should be confined to those concepts which have legal personality.  Business associations not having such personality should be located with other commercial law matters.

Trusts pose a similar problem.  Where would Gaius have put these, had he known of them?^[22]  Should they be put in the law of persons (as Hackey^[23] has suggested, and has happened indeed in this work, in relation to unit trusts and pension trusts, but not other kinds of trusts)?  Given the equitable restrictions on the actions of trustees, should they be put in the law of things?  If so, should they be seen as part of the law of property (which is where trusts are in fact located in this work, and as they are seen by the Scotland Act 1998, s126(4)(d)) or as part of the law of obligations (as most civil law systems would see them)?^[24]  Or should we regard trusts as better located in the law of actions, because of the importance of the doctrines of equity and the law of constructive trusts, especially in relation to the vexed issue of whether there should be such a thing as a remedial constructive trust?  More generally, what indeed of Equity?  You might have thought that a work on English private law was inadequate if it did not include some kind of summary of the history, principles and effects of the doctrines of Equity.  This is particularly important for lawyers from other systems without such doctrines.  But, the substantive rules of trusts apart, this is not included.  And the point is not met by saying that equitable rules are dealt with under each substantive law heading. Equity and trusts should be treated together, in a separate section, between property and obligations.  Sorry, Gaius.

The chapter on private international law is located in Part V (Litigation).  Why?  Although some topics, such as jurisdiction and the enforcement of judgments, have to do with court action, most of the subject is adjectival to the substantive law of persons, things and obligations.  In the current civilian plan, surely Part I (Introduction) would have been a more sensible place to put it, as it is in the – equally civilian – plan set out in the Scotland Act 1998, s126(4)(a).  It may be that the better course within a Roman plan would have been to state the appropriate general principles (e.g. connecting factors, renvoi etc) in Part I, and then to set out the specific principles at the end of each relevant substantive law chapter.  Of course the real answer is that the conflict of laws (although it existed in simple form in the Roman Empire) had no place in Gaius’ scheme, as it was largely an invention of the late middle ages and the renaissance, with writers such as the post-Glossator Bartolus and the sixteenth century French writer D’Argentré.^[25]

The arrangement of the texts dealing with personal property is also unsatisfactory.  We may accept, perhaps, that Sale of Goods properly belongs to Obligations, because these are contracts concerning sale of chattels.^[26]  But why should Bailment and the Chattel torts?  True, they give rise to, or deal with, obligations, but then so do leases and mortgages (firmly located in Property).  Must we then conclude that in this work Part III, Property, means real property (with intellectual property thrown in for good measure)?  Although the vast bulk of Chapter 4, Property: General Principles, deals with or is only applicable to land, a small proportion of its pages deals with personal property.  Similarly with Chapter 5, Security, and Chapter 7, Succession.  The splitting of personal property in this way between Property and Obligations is potentially confusing, and robs the subject of its pragmatic unity, as well as depriving the reader of the intellectual synergies flowing from treating of these matters together.  All the property subjects should be dealt with together.

Problems of this kind can be mitigated – or even eliminated in practice (of course, it messes up the theory) – by a good system of internal cross-referencing.  So, for example, subjects that could be located in more than one “pigeonhole” in the work could have “signposts” directing the reader who looks in the wrong place to the correct location.  As I have already said, Halsbury’s Laws has such a cross-referencing system.  Unfortunately, English Private Law does not.  Many chapters have internal cross-referencing, to another part of the same chapter.  But that is not what I mean.  Almost none of the chapters has much cross-referencing to any other chapter.  This is a great opportunity missed, and I hope it will be put right in future editions.

Professor Birks is fond of saying that, with Gaius’ plan of the law in your head, like a map you can locate in your system (or law library) whatever subject you are looking for.^[27]  But the examples just given above show that this is – in the modern world, at least - just not true.  Even Professor Birks cannot get it right.  There is too much vagueness in the categories, too much choice in the material.  Moreover, it is not enough for all the lawyers to know Gaius, and to agree only to discuss legal matters in his terms.  The legislators must do so too, or their new laws will simply muddy the waters.  As for anyone wishing to know whether English Private Law covers, say, medical law, electronic media law, or sports law,^[28] well, Gaius is no use at all.  They will just have to do what English lawyers always do, i.e. look in the (alphabetical) index.^[29]

Common law and civil law

These problems – and they are not the only ones - seem to me to show up the weaknesses of relying on Gaius’ plan.^[30]  The trouble with any plan – especially one 2,000 years old – is that it requires lawyers to think in a particular, categorised way.  From personal as well as from anecdotal experience, I know that when common lawyers and civil lawyers meet together, professionally or otherwise, they react in completely different ways to the same things.  Civil lawyers tend to be (and here I am vastly generalising, because there are many exceptions on either side) very disciplined, very logical and in consequence comparatively unimaginative and blinkered.  They apply, or attempt to apply, rules of law as though they were rules of mathematics.  This is hardly surprising since the syllogistic reasoning that permeates the civil law systems requires the analogy to be made good.  It brushes aside the important fact that rules of law are not as precise as algebraic symbols.  Our rules are mutable, porous, and have fuzzy edges.  They do not regulate quantum physics, but human emotions, feelings and actions. 

Common lawyers do not think or behave in this way.  They tend not to think in syllogistic form, but instead to work backwards, by looking at the facts, and then inferring a rule.  You can ask a civil lawyer to tell you the law in the abstract on any particular point.  He will do so happily, quoting the relevant article of the Code.  An English common lawyer, asked the same question, nearly always wants to know which side you are on, or at the very least what are the precise facts in question, what is the problem?  He has no Code; he may look in a textbook on that particular subject, or he may look in a legal encyclopaedia.  Indeed, to judge from the arguments of some of my opponents in litigation, often he does not look anywhere at all.  Common lawyers are much less disciplined, more imaginative, more creative.  That is one reason why we have so many textbooks and monographs on novel subjects, like Sex Law,^[31] Food Safety Law ^[32] and Asset Protection.^[33]

Professor Birks has a thing about the alleged “stovepipe”  mentality of common law practitioners, i.e. that they -

“know their law only in the way that many people know London, as pools of unconnected light into which to emerge from a limited number of friendly tube stations… The reason why these “stovepipe” lawyers cannot move confidently from one area of the law to another is that nobody has shown them the map.”^[34]

At best this is the view of any stranger visiting a big city for the first or second time.  At bottom it is little more than a plea for a nostalgic vision of lawyer as renaissance man, the man of law who can do everything.  He displays sound common sense and business acumen, as he dispenses matrimonial and tax advice, whilst simultaneously drafting both complex particulars of claim and old-fashioned disentailing deeds.  There may even be a few – a very few – lawyers left in England who can do all these things equally successfully (or, indeed, at all).  And it may still be possible to find such lawyers in some of the more fragmented continental European systems. But legal practice in England nowadays does not need generalists who know a very little about a lot.  Instead it requires specialists, who know absolutely everything about their particular areas.^[35]  I do not want a generalist, however well-read, dealing with my complex (and specialist) legal problem, any more than I want a GP to carry out my heart surgery.  Nor do I want a specialist in securitisation to move (confidently or otherwise) into advising me about my discretionary trust.  Having Gaius’ map will make no difference to the quality of the advice I receive. Indeed, as in other areas using intellectual creativity, the lawyer who grows up in an Anglo-Saxon environment is better than the civilian at flying by the seat of his pants, inventing new things and (in the legal context) new ideas.^[36]  These include the trust, which plays such an important role in the common law world, and is virtually unknown in the rest of it.  It is also striking that the law of restitution - or unjust enrichment, if you insist – can be virtually invented in a single generation as a discrete legal subject, with its own textbooks, gurus, taught courses and so on.  That simply does not happen in the civilian world; ex hypothesi there cannot be any new legal subjects.  We are currently in the throes of a new legal revolution in England, testing our legal rules against the standards set down by the European Convention on Human Rights.  Another tribute to the adaptability of common lawyers.

I do not want to suggest that the common law way of doing things is a necessarily better one, or (worse) the only way of doing things, or that the civilian approach is wrong-headed, fatally flawed, or anything of the kind.  It is sufficient to say that it is a different way of doing things which suits a different kind of society.  The energy and the vitality of the common law systems depends on lawyers being trained in a particularly unstructured way, instead absorbing, practising and refining particular legal techniques.  The trouble with the Roman law plan is that it limits the mind, and makes it more difficult for the common lawyer to operate in the way in which his system is shown to its best advantage.  In other words, the unstructured alphabetical order (or similar) approach to law book writing is both a consequence of the way that we operate as lawyers, and a help to us in operating that way.  The advent of the computer database and the ability to make unstructured searches within it in a matter of seconds is a terrific advance – but it falls on the common law side of the tracks.  You don’t need Gaius in your head in order to make a computer search.  To impose a grid plan from a completely different social, cultural and legal world, and in particular to borrow a plan invented 2,000 years ago in a completely different society, with different needs, resources and aspirations, seems to me to be wholly inappropriate, and even to pose a risk to the continued excellence of the common law approach itself.  As Professor Birks himself admits,^[37] even the (mildly Roman) scheme put forward by Blackstone less than 240 years ago is not a suitable basis for “an enlightening account of modern English law.”  The common law simply moves too fast.  Its genetic structure mutates in every generation, as it adapts to changed conditions.  Like computers, the common law reinvents itself constantly.

Professor Birks can use computer metaphors too.  He likens English Private Law to common law data on a computer being run by civilian software.  Why use civilian software?  Why, because -

“the taxonomy of English Private Law, derived as it undoubtedly is from Gaius and as such still rooted in the second century AD, is the best software currently available.  The more it can be improved the better.  There is no option for having none at all.  It has to be this one or a better one.”^[38]

I respectfully doubt both the accuracy of the first sentence and the truth of the third.  The civil law is as it is because of Gaius’ “software”.  The common law is as it is, and (in a world sense) where it is, not because it has better “software”, or even just different, but precisely because it has none.  Before we start loading Word 150 AD onto our Apple Macs, we have to be sure, not merely that it will work, but also that it will not cause damage further down the line to our screens and our printers and our modems.  Law is a means to an end, and, if the end is satisfactorily achieved, why tamper with it?  If it ain’t broke, don’t fix it.

Envoi

In the publicity material, Lord Steyn is quoted as saying that this work would -

“be an indispensable tool in the hands of judges.  And since the judges hold the votes, practitioners will not want to lag behind.”

It is difficult to know exactly what Lord Steyn meant by this.  I do not know how many judges actually have copies – or other access – to the work.  Certainly, Lord Steyn has, because he cited it (although not quoting verbatim) in Johnson v Unisys Limited.^[39]  To judge from the computer searches I have made, this appears at the time of writing to be the only case in the publicly available databases in which the work has been cited since publication last December.  And even if the judges read the work, it does not mean that the practitioners will, votes or no votes.  In a sense Lord Steyn has matters the wrong way round.  It may be that, in the modern civil law world, the judge tells the parties what the law is, and the lawyers have therefore little or no influence on the outcome of the judge’s decision so far as propositions of law are concerned.  But in the common law world, even post-Woolf, judges rely on the practitioners to bring the relevant materials to their attention, and typically do not – and these days probably do not have time to – carry out private researches and inform themselves of the state of the law.  If the lawyers do not cite this work, the judges will probably not know that it contains anything of relevance.

This is a brave venture, which deserves to succeed at least at some of the levels it aims for, if perhaps not at all of them.  Accordingly if there is to be a concerted effort by the judiciary in persuading practising English lawyers that they need this work, then it must begin sooner rather than later.

Paul Matthews is a consultant with the firm of Withers LLP, 16, Old Bailey, London, EC4M 7EG and is a visiting Professor at King’s College, London.

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