The Philosophies of the Common Law and Their Implications: Common Law Divergences, Public Authority Liability, and the Future of a Common Law World
Forthcoming in The Common Law of Obligations: Divergence and Unity (Oxford: Hart Publishing, Andrew Robertson & Michael Tilbury eds., 2015).
31 Pages Posted: 6 Apr 2015 Last revised: 21 Apr 2015
Date Written: April 2, 2015
The common law seems to suffer from a countermajoritarian difficulty: in most of the world, it is law made by unelected judges. What could justify it? In this essay I consider the answer to this question through the lens of the question of convergence among common law countries. Common law convergence is the view that different common law jurisdictions should aim to have a (fairly) similar laws of contract, torts, and so on. I identify three different attitudes towards common law convergence. One view seeks universal convergence (one that extends to all legal systems, regardless of their origin), the second limits convergence to common law jurisdictions (explicitly rejecting convergence with non-common law jurisdictions), and the third is uninterested, even hostile, to common law convergence. I consider the philosophical assumptions behind each of these three approaches and explain how they address the common law’s seeming lack of democratic legitimacy. I then go on to show that these different views on the legitimacy of the common law are have implications on matters that appear unrelated to it, such as the scope of tort liability of public authorities. I conclude the essay with a simple model seeking to explain why, in spite of the historical popularity of the idea of common law convergence (especially within the Commonwealth), common law jurisdictions have been drifting apart.
Keywords: common law, comparative law, jurisprudence, legitimacy, tort liability of public authorities
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