The Unity of the Common Law, 2nd Edition

Author: Alan Brudner
Publisher: Oxford University Press
ISBN: 9780198812401

Published In: July 2017
Format: Paperback , 384 pages
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only
Hardback Edition ISBN: 9780199592807

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A thoroughly revised and rewritten edition of Brudner's classic contribution to the theory of private law
Develops an account of private law that overturns the traditional divide between functionalism and formalism in explaining and justifying the law
Reconceives the core areas of private law - property, tort, contract, and unjust enrichment as part public, part private law

New to this edition

Thoroughly revised and updated in light of developments in private law theory since the first edition
There is a new chapter situating the book in relation to the so-called New Private Law.
There is a new chapter on the place of private law in Kant's philosophy of right, a new chapter (contributed by Jennifer Nadler) on unjust enrichment.

In this classic study, Alan Brudner investigates the basic structure of the common law of transactions. For decades, that structure has been the subject of intense debate between formalists, who say that transactional law is a private law for interacting parties, and functionalists, who say that it is a public law serving the collective ends of society. Against both camps, Brudner proposes a unity of formalism and functionalism in which private law is modified by a common good without being subservient to it. Drawing on Hegel's legal philosophy, the author exhibits this unity in each of transactional law's main divisions: property, contract, unjust enrichment, and tort. Each is a whole composed of private-law and public-law parts that complement each other, and the idea connecting the parts to each other is also latently present in each. Moreover, Brudner argues, a single narrative thread connects the divisions of transactional law to each other. Not a row of disconnected fields, transactional law is rather a story about the realization in law of the agent's claim to be a dignified end-master of its body, its acquisitions, and the shape of its life. Transactional law's divisions are stages in the progress toward that goal, each generating a potential developed by the next. Thus, contract law fulfils what is incompletely realized in property law, negligence law what is germinal in contract law, public insurance what is seminal in negligence law, and transactional law as a whole what is underdeveloped in public insurance. The end-point is the limit of what a transactional law can contribute to a life sufficient for dignity.

Reconfigured and expanded with a contribution by Jennifer Nadler, The Unity of the Common Law stands out among contemporary theories of private law in that it depicts private law as purposive without being instrumental and as autonomous without being emptily formal.

Readership: Academics and advanced students in the theory of private law.

Part 1
1: The Crisis of Private Law
2: Private Law and Kantian Right
Part 2
3: The Unity of Property Law
4: Reconstructing Contracts
5: Jenifer Nadler: Unjust Enrichment as Part Public Law
6: Recovering Tort Law
Part 3
7: Idealism and Fidelity to Law
8: The New Private Law

Alan Brudner is Professor Emeritus of Law and Political Science at the University of Toronto. He is the author of Punishment and Freedom (Oxford, 2009), Constitutional Goods (Oxford, 2004), and The Unity of the Common Law: Studies in Hegelian Jurisprudence (California, 1995). He was elected to the Royal Society of Canada in 2011.

Contributors:
Alan Brudner
Jennifer Nadler