Another post? Already?

Well two posts in two days in a row I am sure is a record for me, but I am in heavy procrastination mode right since my criminal law exam is tommorow afternoon. For those I haven't told yet I will be remaining in London for the summer doing legal research for a professor here. It should be an interesting gig and the research is in the area of the private law, mainly dealing with what is known as 'unjust enrichement'.

Unjust enrichement(UE), for those of you who are interested, is an old equitable doctrine that has recently begun to find favour with the courts. It is more commonly known as 'restitution' but the new name is supposed to be more accurate because in law there are mutiplie meanings of resitution. Anyways, basically, UE says that a party who benefits from the detriment of another without any juridical reason (like a contract, or a gift etc.) must restore (this is where restitution comes from) that benefit to the party who suffered the loss. Different common law jurisdictions(Canada, the UK, the US, etc.) have different 'tests' or elements that a complaining party must show to succesfully raise an UE claim but they are essentially all based around three.
First, the complaining party must show that there was an enrichment.
Second, that they suffered a detriment, and
Third, that there was no juridical reason for that enrichement.

Anyways, the reasearch I will be doing will be more detailed but this is the general area that I will be working in. It may be a HUGE suprise to some of you, but I kinda enjoy the private law. It is theoretically quite interesting.

Part of the reason for this is the professor I have here. He is a great guy and a law wizard, he was in the top 3% of his class at MCGill. THe guys mind is built for the law. Anyways, there are a few things about him I like.

First, he still views the legal profession as exactly that, a profession with responsibilites and demands placed upon its members. In recent years Canadian lawyers have been taking a more 'business' approach to their jobs to the detriment of the profession. This change of view affects the profession in a number of ways that I need not get into here. But basically it comes down to how important are those, what we would call now 'hoky', things to the proffesion. Like the gentelmanly nature of the proffesion were opposing council and the courts treated each other with respect and dignitiy. Not trying to screw over the opposing side by sending them disclosure documents at 4:30 on fridays etc. Not working 80 hours a week. I know being cynical about things is the norm these days, but in the legal profession it doesn't make any sense.

Secondly, this professor is strongly driven by a philosophy of the private law. His theoretical focus is probably what attracted me to his teaching style and his research. He is part of what is being called 'The Toronto School'. To simplify this 'schools' position a little bit, it is an offshoot, at least I think it is, of what is known as 'legal formalism'. One of its major proponents is this guy Peter Benson at U of T. Basically it says that the law is coherent and that its coherency and principles flow from the two party relationship contained in private law disputes. I really can't make a strong argument or exposition of it here but I might be able to give it a flavour by contrasting it to the two other most popular views of the law in North America.
First, especially in the United States, there is a huge movement that tries to explaion the private law by economics. Basically saying that all the legal rules of the private law reflect and should reflect economic descsion making. THis involves all those things we remember form economics so well, people are rational utility maximisers etc. So Tort lawhas and should develop along the lines of their economic efficey. If the legal rule does not advance economic efficeny, usually understood as the maximization of utility for all, it should be struck out or modified to fit with this view.


Second, there has been what is called 'Critical Legal Studies'. This Theory has tended to draw inspiration from recent developpments in post-structuralist philosophy, although its roots stretch back to my old neck of the woods, critical theory which found its inspiration in the frankfurt school. Basically this school argued much of what is popularly thought about the law these days. The law is indeterminate, meaning that laws themesevles do not give us any guidance to resolving disputes since its meaning is only 'put in there' by the judges. Two conclusions flow from this. First, that all law is therefore politics and second, that the law will tend to serve the wealthy and the powerful. THis is a brief and superficial description fo the movement but I think a bit of it's flavour comes out. (A breif side note, I wondered at times about the last bit, considering that it was the courts that enforce our civil rights etc.)

Legal formalism tends to break down the law slightly differently. The units of measurment is not in economic efficency of legal rules or relationships of power and the indeterminacy of the law but rather on the enforcement and protection of legal rights and obligations. As most of you with some philosophy in your background you will see Kant floating around in the background here, which I kinda like for some reason. So in a contractual relationship we have the creation of two sets of rights and two sets of obligations, these are the flip=side of each other. Basically it is the creation of mutual promises. It is from this basis that the law determines its legal rules( at least in the law of contracts). I.e. if you fail to fufil your legal obligations, i.e. the other parties legal rights, than the courts will try to enforce those rights to the best of its abilities. (Of course, one problem with this view is that specific performance, i.e. making the breaching party fufil its obligation, is rarely awarded by the courts and they usually just grant what is known as 'expectation damages', i. e. a sum of money that represents the position you would have been in had the promise been fufilled.

Clearly, philosophically, legal formalism has its problems, but I still find it more interesting and challenging than both the law and economics movement and critical legal studies. Part of the reason why I find it so interesting is, of course, simply because I am a sucker for 'principles'.

Anyways, there is a brief, admitidly inchorent, rendition of some legal theory. If you found any of it interesting leave a comment, I could try, when I have more time, really start writting down some of my thoughts on law and politics etc.

Well I am out of breath, so take care folks and you might see a new post in the next few days.