The Unity of the Common Law

Hardcover | October 15, 2013

byAlan Brudner

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In this classic study, Alan Brudner investigates the basic structure of the common law of transactions. For decades, that structure has been the subject of intense debate between formalists, who say that transactional law is a private law for interacting parties, and functionalists, who saythat it is a public law serving the collective ends of society. Against both camps, Brudner proposes a unity of formalism and functionalism in which private law is modified by a common good without being subservient to it. Drawing on Hegel's legal philosophy, the author exhibits this unity in eachof transactional law's main divisions: property, contract, unjust enrichment, and tort. Each is a whole composed of private-law and public-law parts that complement each other, and the idea connecting the parts to each other is also latently present in each. Moreover, Brudner argues, a singlenarrative thread connects the divisions of transactional law to each other. Not a row of disconnected fields, transactional law is rather a story about the realization in law of the agent's claim to be a dignified end-master of its body, its acquisitions, and the shape of its life. Transactionallaw's divisions are stages in the progress toward that goal, each generating a potential developed by the next. Thus, contract law fulfils what is incompletely realized in property law, negligence law what is germinal in contract law, public insurance what is seminal in negligence law, andtransactional law as a whole what is underdeveloped in public insurance. The end-point is the limit of what a transactional law can contribute to a life sufficient for dignity.Reconfigured and expanded with a contribution by Jennifer Nadler, The Unity of the Common Law stands out among contemporary theories of private law in that it depicts private law as purposive without being instrumental and as autonomous without being emptily formal.

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In this classic study, Alan Brudner investigates the basic structure of the common law of transactions. For decades, that structure has been the subject of intense debate between formalists, who say that transactional law is a private law for interacting parties, and functionalists, who saythat it is a public law serving the collective...

Alan Brudner is Professor Emeritus of Law and Political Science at the University of Toronto. He is the author of Punishment and Freedom (Oxford, 2009), Constitutional Goods (Oxford, 2004), and The Unity of the Common Law: Studies in Hegelian Jurisprudence (California, 1995). He was elected to the Royal Society of Canada in 2011.

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Format:HardcoverDimensions:384 pages, 9.21 × 6.14 × 0.1 inPublished:October 15, 2013Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0199592802

ISBN - 13:9780199592807

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Table of Contents

Part 11. The Crisis of Private Law2. Private Law and Kantian RightPart 23. The Unity of Property Law4. Reconstructing Contracts5. Jennifer Nadler: Unjust Enrichment as Part Public Law6. Recovering Tort LawPart 37. Idealism and Fidelity to Law8. The New Private Law