ARTICLE: Watts on Taxonomy in Private Law
"Taxonomy in Private Law- Furor in Text and Subtext" by Peter G. Watts has been published in the Philosophy of Law eJournal (2014) and is available on SSRN.
This article starts
with an overview of the debates over classification in private law that took
place in the latter period of Peter Birks’s career. It does so by setting out
the Birksian taxonomy and by collecting various extracts from Birks’s voluminous
output, then contrasts those extracts with the views of a selection of his most
prominent critics. The article next turns to a defence of Birks’s project and
its aims of promoting rationality, the confinement of discretion, and modesty of
function in the common law. The greater part of the article is devoted to
showing how, in tort law particularly, New Zealand common law has lost its
modesty and is intruding on personal freedoms. Instead of requiring an
undertaking before a party becomes liable for nothing more than causing damage
to another’s wealth, liability is being imposed from without by fudging the
boundaries between contract and tort, and by using as tools nothing much sharper
than “justice and fairness”. The final section of the article then turns to
criticise, on similar grounds, the concept of unjust enrichment as promoted by
Birks himself.
