Centripetal Force: The Law of Unjust Enrichment Restated in England and Wales

Abstract

Restatements of the law are usually considered a uniquely American phenomenon, explained by the complexities and uncertainties of a multi-jurisdictional common law system. They have also been subject to the accusation from legal realists that they are misleading, conservative and formalistic exercises. This article interrogates the role of the restatement in a jurisdiction with a singular common law tradition, focusing on Andrew Burrows’ recent Restatement of the English law of Unjust Enrichment. It compares and contrasts this restatement with previous American restatements and with other types of ‘public statement’ of private law, such as codes and legal treatises, determining the formal and purposive differences between them. It concludes that there may be good reasons for restating unjust enrichment law in England at the current time, some of which are particular to that jurisdiction; and that Burrows’ work is unique in its form and purposes. The central thesis is that a restatement can provide an important public platform for intellectual debate and a powerful centripetal force addressing legal fragmentation and uncertainty even in a singular common law jurisdiction. It further suggests that modernist doctrinal enterprises of this type may be more sympathetic to the critical insights of legal realism than is sometimes suggested, indeed that 'doctrinal modernists' and modern legal realists share at least some ambitions and premises regarding legal rules.

Keywords: Unjust Enrichment, Restitution, Restatement, Codification, Code, Legal Realism, Burrows