English Private Law: Old and New Thinking in the Taxonomy Debate

Abstract

A recently published two-volume work edited by Peter Birks has as one of its objectives the encapsulation of the whole of English private law within a legal plan that draws its inspiration from the Institutes of Gaius.' It is in other words a kind of Institutes of English Private Law. This work, whatever its substantive merits or demerits, deserves some attention. It deserves attention not only because such a project is, consciously or subconsciously, preparing the ground for possible harmonization of private law in Europe, but also because it is purporting to rescue English law from a course said to be leading to incoherence and disaster. 'Better understanding of the law', writes the Editor in his introduction, 'depends upon a sound taxonomy of the law'. And if scholars turn their back to the taxonomic debate 'the common law will dissolve into incoherence' since information 'which cannot be sorted is not knowledge'.2 One purpose of this article is to consider the validity of these claims and some of the wider issues that they raise. It will be argued that there are problems with the taxonomical approach being advocated by Birks. The strict rights approach, favoured by the editor of English Private Law, is problematic in as much as it does not sit comfortably either with the Gaian institutional scheme itself or with an understanding of the common law mentality. Moreover, even assuming that legal knowledge is now focused around the notion of a right, it will be argued that the persona and res and person and person relations around which the Gaian scheme is constructed are no longer suitable for contemporary society.3 Rather, in a society that emphasizes a variety of different kind of rights (social, economic, political), the scheme should now take as its starting point a persona that is constructed differently depending upon the legal regime in play. Thus constitutional