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The Common Law in the Twentieth Century: Some Unfinished Business |
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| Before the 19th century, the common law was not organized by doctrines or even by areas of law such as contract and tort. It was organized according to forms of action, each with its own rules. In the 19th and 20th centuries, treatise writers rationalized and systematized these rules. Sometimes they borrowed civil law ideas: for example, in tort, they borrowed the distinction between intent, negligence and strict liability; in contract, the doctrines that determine whether agreement has been reached and what damages should be awarded for breach; in restitution, the principle that no one should be enriched at another's expense. Sometimes they responded to civil law ideas: for example, they devised a theory of ownership in response to a civil law debate about possession. Sometimes, they reformulated older common law rules: for example, they equated consideration with bargain and a bargain with a bargained-for-detriment; they redefined the traditional common law actions in what they now called tort. Sometimes, particularly in the law of property and restitution, they simply preserved archaic rules that defied rationalization. The end result, which persisted through the 20th century and which we take to be the common n law, is an amalgam of inherited rules, civil law borrowings, and the rationalizations of 19th and early 20th century jurists. It is neither traditional nor rational. It is a compromise between the desire of these jurists to be sensible and coherent, and their need to present their work as a mere explanation of the law they inherited. The thesis of this Essay is that to have a coherent private law, we must reject the compromise and weed out the relics of the older common law which these jurists preserved. | |
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Copyright
© 2000 by California Law Review, Inc. |
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