'And So the Legal World Goes Round': The Search for a Meaningful Law of Restitution (in Response to Virgo, 'All the World's a Stage')
15 Pages Posted: 19 Oct 2016
Date Written: October 18, 2016
Graham Virgo has argued that recent Supreme Court rulings on unjust enrichment neglect the theoretical basics of that liability, an approach which (he argues) can only lead to chaos in doctrine. But unjust enrichment theory, having been carefully purged of any normative content, is merely a matter of technique, and cannot on its own do much to guide the development of the law – we cannot move the law onwards without some idea of where we wish to go. So when the courts develop the law in search of meaningful solutions to novel problems, they necessarily draw on resources outside the anodyne generalisations of unjust enrichment theory. Academic debate in the area is increasingly recognising this issue – the search for meaning continues, even though our principal theory is purposefully devoid of it. If Virgo wishes to contribute to this ongoing debate, he must therefore look beyond his prized doctrinal formulae and the logic he associates with them, and ask what should guide their use.
Keywords: Unjust Enrichment, Restitution
JEL Classification: K10, K11, K19
Suggested Citation: Suggested Citation