The Philosophies of the Common Law and their Implications: Common Law Divergences, Public Authority Liability and the Future of a Common Law World
The Common Law of Obligations : Divergence and Unity
The common law seems to suffer from a countermajoritarian difficulty: in most of the world, it is law made by unelected judges. What could justify it? In this essay I consider the answer to this question through the lens of the question of convergence among common law countries. Common law convergence is the view that different common law jurisdictions should aim to have a (fairly) similar laws of contract, torts, and so on. I identify three different attitudes towards common law convergence.
... law convergence. One view seeks universal convergence (one that extends to all legal systems, regardless of their origin), the second limits convergence to common law jurisdictions (explicitly rejecting convergence with noncommon law jurisdictions), and the third is uninterested, even hostile, to common law convergence. I consider the philosophical assumptions behind each of these three approaches and explain how they address the common law's seeming lack of democratic legitimacy. I then go on to show that these different views on the legitimacy of the common law are have implications on matters that appear unrelated to it, such as the scope of tort liability of public authorities. I conclude the essay with a simple model seeking to explain why, in spite of the historical popularity of the idea of common law convergence (especially within the Commonwealth), common law jurisdictions have been drifting apart. Prologue Following the economic crisis of the last few years, John Maynard Keynes has once again assumed centre-stage. 1 In this essay I am not going to speak about Keynes's economic ideas, but will attempt to say something about the significance he accorded to ideas. In the concluding paragraphs of his General Theory of Employment, Interest, and Money Keynes famously wrote that 'the ideas of economists and political philosophers, both when they are right and when they are wrong, are more powerful than is commonly understood. Indeed the world is ruled by little else. Practical men, who believe themselves to be quite exempt from any intellectual influences, are usually the slaves of some defunct economist....I am sure that the power of vested interests is vastly exaggerated compared with the gradual encroachment of ideas'. 2 Keynes alludes in these brief remarks to a longstanding debate among historians and philosophers of history on the relative significance of ideas and interests. 3 In this essay I will explore the influence of ideas on the common law. I will attempt to show that different answers to a philosophical question on the authority of the common law have very practical implications to the question of the relevance of convergence and divergence between different legal systems. Even more contentiously, I will argue that these philosophical debates have implications to substantive questions of tort law. In both domains, we cannot make complete sense of the debate and have no basis for choosing one answer over another without attending to underlying ideologies. Even lawyers who believe themselves to be engaged in 'practical' scholarship, seeking to account for the law as found in the case and base whatever normative suggestions they make on nothing more than the idea that like cases be treated alike, 4 should not ignore the significance of these ideas. * Associate Professor, Osgoode Hall Law School, York University.