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Books > Law > Jurisprudence & general issues > Jurisprudence & philosophy of law
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The Unity of the Common Law (Paperback, 2nd Revised edition)
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The Unity of the Common Law (Paperback, 2nd Revised edition)
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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 say that it is a
public law serving the collective ends of society. Against both
camps, Brudner proposes a synthesis 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 synthesis in each of 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
single narrative 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. Transactional law'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, and
transactional 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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