An alternative approach: Private law in the Common Law system

Beale, Hugh (2024) An alternative approach: Private law in the Common Law system. In: Codification of Civil Law: Assessment, Reforms, Options. Legal Heritage . Central European Academic Publishing, Miskolc–Budapest, pp. 81-113. ISBN 978-615-6474-72-8 ISBN (epub) 978-615-6474-73-5 ISBN (pdf) 978-615-6474-74-2

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Abstract

The Common Law appears to present a sharp contrast to codified systems. The judge-made law seemingly adopts piecemeal solutions that are not always consistent, and that, despite the system of precedent, are subject to revision by the courts. Legislation on contract, tort, and unjust enrichment is also piecemeal or (as with the Sale of Goods Act) only partial. However, it can be argued that the Common Law has developed principles that may be applied unless there is good reason not to do so; that sudden changes are prevented by a process of incremental development and by a close-knit legal profession that shares values; and that the Common Law has flexibility, adopts a pragmatic approach, and accommodates policy concerns in an open fashion. Nevertheless, instances of ‘judicial reform’ of the law exist to enable parties to achieve what they want. This system seems well suited to the ‘commercial’ nature of English law, in particular with its aim to be ‘the law of choice’ for international transactions. However, the legal profession shows no enthusiasm for codification.

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