A Map of the Common Law?
Stephen A. Smith
McGill University - Faculty of Law
Canadian Business Law Journal, Vol. 40, pp. 364-383, 2004
This essay evaluates the argument, as developed in Stephen Waddams' book "Dimensions of Private Law," that the common law, and in particular common law private law, is too complex and contradictory to be explained on the basis of any classificatory scheme or 'map'. The essay distinguishes different criticisms of map-making projects, and argues that historical evidence about law-maker's motivations and the past use of classification schemes have little force against contemporary projects. It is further argued that, while it is unrealistic to expect any scheme to account perfectly for the existing rules, this is not the standard against which classification schemes should be judged. Such schemes are successful if they help us to understand the law, and there is no a priori reason to suppose this is not possible in the case of law. Moreover, it is no objection that mapmakers often respond to claims that their maps do not fit this or that part of the law by suggesting the law in question is wrong, marginal, or misclassified. Unless we are to give up entirely the attempt to better understand the law, we must acknowledge the possibility that the current understanding is inadequate. Admittedly, existing maps contain significant gaps. But there are a number of ways such gaps might be filled. The success of common law mapmakers over the last two centuries suggests it would be highly premature to conclude their work has gone as far as it can. To the contrary, the project is still in its infancy.
Number of Pages in PDF File: 20
Keywords: Common law, private law, legal theory, classification
JEL Classification: K10, K12, K13Accepted Paper Series
Date posted: December 7, 2004
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