OBLIGATIONS AND LEGAL REASONING

The question, therefore, whether one system should adopt a structure from another tradition soon becomes submerged under more complex questions about theory and methods. This in turn impacts upon any work that sets out to describe and discuss the English law of obligations

87 Legrand, P, Le droit comparé, 1999, PUF.

88 Strömholm, S, A Short History of Legal Thinking in the West, 1985, Norstedts, p 46. 89 See, eg, Motulsky, H, Principes d’une réalisation méthodique du droit privé, 1948,

Sirey; Bell, J, Policy Arguments in Judicial Decisions, 1983, OUP; Alexy, R, A Theory

of Legal Argumentations, Adler, R and MacCormick, N (trans), 1989, OUP;

Bengoetxea, J, The Legal Reasoning of the European Court of Justice, 1993, OUP. 90 See, generally, Bergel, J-L, Théorie générale du droit, 3rd edn, 1999, Dalloz,

pp 265–89; Stamatis, M, Argumenter en droit: une théorie critique de l’argumentation

juridique, 1995, Publisud.

91 Atias, C, Épistémologie juridique, 1985, PUF. And see, also, Atias, C, Épistémologie

du droit, 1994, PUF.

92 On the failure of artificial intelligence in general see: Dreyfus, H, What Computers

Still Can’t Do, 1992, MIT. On the limitations of systems based on the theory that

knowledge of law is to have knowledge of rules, see: Susskind, R, Expert Systems

in Law, 1987, OUP, pp 186–93. See, also, Samuel, Foundations; but cf Bell, J (1995)

Chapter 1: General Introduction

in that such a work will need to be aware that it is, by definition, entering the field of comparative law. In addition, there will need to be an awareness that the ‘fundamental doctrines and principles’, and the ‘intellectual and practical skills needed to research the law [of obligations]’, are themselves in question.93_{As the Law Society and the}

Council of Legal Education stated, knowledge of a subject such as the law of obligations requires, in addition to the ‘foundations of’ contract, restitution and tort, a knowledge of how ‘to apply the law to the facts’ and ‘to communicate the reasons’ for decisions.94_{And so a work on the}

law of obligations will need to be comparative and theoretical as well as practical and analytical. It will need to be continually conscious of the methods of legal reasoning.

Here again Roman and civil law have an important role to play and not just in the way law is classified but also in respect of how these classifications have a direct influence on reasoning. For example, one can assert, as we have mentioned, that the law of actions played an influential role in the way Roman jurists analysed and reasoned. In starting out from a particular factual situation and working towards a solution via the particular remedy the law might be said to be found in the facts themselves. Indeed this was exactly how the Roman jurists and their medieval successors saw law as functioning: the law was not to be discovered in rules since these were simply brief résumés of what the law is.95Law arose out of the facts themselves (ex facto ius oritur).96All this may seem at first sight little more than rhetoric. Yet the methods of the Roman jurists do appear to be rather different from the interpretative techniques adopted by their modern civilian successors.97 And this has implications not just for the understanding of the law of obligations itself but for the difficult matter of harmonisation of private law in the context of the EU (cf Chapter 14). A system that emphasises facts and remedies may find itself thinking, as we have already suggested, in a way that is substantially different from one that functions via symmetrically structured codes whose propositions are seen as relating to facts by means of syllogistic reasoning (cf Chapters 3, 14).

93 The quotations are taken from the Announcement on Full Time Qualifying Law

Degrees issued jointly by the Law Society and the Council of Legal Education in

January 1995. See ACLEC, First Report on Legal Education and Training (April 1996), p 140.

94 Ibid. 95 D.50.17.1.

96 Stein, P and Shand, J, Legal Values in Western Society, 1974, Edinburgh UP, pp 103–11.

This difference of approach can reflect itself in the technique of problem solving in the law of obligations.98_{A system that functions at}

the level of fact is likely to make distinctions between different types of persons and different types of things. Thus a ruling dealing with damage caused by defective wall might not be relevant for damage inflicted by an old tree, even although both items can be described as ‘things’. Equally, the hire of a supertanker could be treated quite differently than the sale of an orange. In a system that thinks in terms of abstract principles such distinctions might not always be so easily perceived; one is liable, so the Code civil informs its citizens in Art 1384, for damage caused by a ‘thing’ under one’s control. There is no reason why the notion of a thing in this proposition should not include both a wall and a tree. One difference, then, between a system that thinks in terms of facts and remedies and a system that thinks in terms of abstract principles is the difference between things and words (cf Chapter 14).99

Now it has to be said that the differences of technique between the various legal systems of Europe turn out to be more complex and sometimes more contradictory than one might at first imagine.100 Nevertheless, a system interested in solving problems at the level of fact, rather than through the application of a schematic set of propositions, is less likely to be concerned about high level abstract concepts such as the notion of an obligation. Roman law appeared to be different. But, as we have seen, higher level abstract conceptions played a vital role in supporting legal argumentation and analysis at the level of facts. In other words the schematic set of legal relations (in rem and in personam) played a practical role in the actual analysis of the facts themselves. Yet unless it can serve a practical end, it is unlikely that the concept of an obligation will have much relevance in the case law itself. One question, therefore, which must continually be faced when looking at the case law decisions is the question of the value of thinking in terms of a law of obligations. Is such a category really necessary?

98 Op cit, Legrand, fn 87, pp 75–102.

99 Samuel, G, ‘Entre les mots et les choses: les raisonnements et les méthodes en tant que sources du droit’ [1995] RIDC 467.

Chapter 1: General Introduction