The late Professor Peter Birks argued that common lawyers did not take legal taxonomy seriously enough and as a result categories of legal wrongs could intersect. One example he used to illustrate this point was Spring v Guardian Assurance plc ([1995] 2 AC 296). Here, he said, the two categories of defamation and negligence intersected and in consequence, as Eric Descheemaeker, who was one of Professor Birks doctoral students, puts it in his new monograph (based on his thesis), the law had resorted “to a bent classification comprising intersecting categories” (p. 255). One aim of Dr Descheemaeker's book is to provide a means of ‘unbending’ the bendiness in English tort taxonomy.
This is not the only aim of the book. Much of the substance is taken up with a very well researched investigation and analysis of the taxonomy of wrongs not just in Roman law itself but in the French doctrinal second life of Roman law. The result is, it must be said at once, that there is now in English an excellent historical account of the classification of civil wrongs from Gaius to the Code civil and, indeed, beyond this great 1804 landmark right up to the present day. Descheemaeker's analysis and discussion of the doctrinal material is rich in its depth and insights; and one particularly valuable point to emerge from this work is that the controversial category of quasi-delict was probably a Roman category giving expression to forms of liability without fault (pp. 73–88). This is valuable in Descheemaeker's view – and no doubt in the view of anyone interested in the history of Roman legal thought – because quasi-delict can be now be employed to provide a useful dichotomy when considering modern French law. As the author argues, the category of délit might be employed to accommodate fault liability under article 1382 and quasi-délit the jurisprudence attaching to article 1384. If such a dichotomy were to be used, “there would be no need to empty the notion of faute of its substance to have it include faute-less situations” (p. 185).
Distinguishing between fault and no-fault liability is of course valuable because of the moral and policy considerations that underpin these two types of liability. One can use these categories to help expound how the law of civil wrongs sometimes focuses on acts and sometimes on activities. However Dr Descheemaeker wants to go further than merely dealing with useful expository categories. Following the lead given by his old supervisor, he wants to see a coherent ‘mapping’ of the law “which allows us to structure and develop the law along lines (or, to use a metaphor, props) which do not collide with one another” (p. 217), the aim being in the end that such coherent mapping will “serve justice” (p. 218). It will serve justice, first, because like cases should be treated alike and, secondly, because it will make the law certain and therefore predictable. Dr Descheemaeker then repeats Birks' thesis that these two elements of justice are part of the ‘democratic bargain’, that is to say “the reason why people accept abandoning the administration of justice into the hands of a professional judicature” (p. 218).
This sounds quite nice. But, as is often the case with lawyers (and one reason why non law social scientists sometimes do not treat them seriously), is that neither Peter Birks nor, now, Dr Descheemaeker offer the slightest shed of empirical evidence that this is actually why the people put their trust in judges. Descheemaeker just asserts this. Maybe he is right or maybe he is wrong, but simply asserting something does not provide the assertion with any validity epistemologically. Indeed one wonders about the whole idea of ‘democratic bargain’ – one could just as easily assert that the UK has never been a proper democracy – and if one is going to use this as the ultimate foundation for a whole doctoral thesis a social scientist would surely demand something more ‘scientifically’ viable.
In fact what Descheemaeker is doing is slipping from correspondence (matching his assertion to objective social fact) to coherence. He is implicitly drawing an analogy between law and mathematics, or between law and theology, where epistemological validity through correspondence is not possible as a means of supporting assertions. Thus the ultimate validity is to be found in the coherence of the system he himself is asserting. Those that raise questions about this kind of self-validation are met with arguments about justice, certainty and fairness; but little thought is given to the fact that the common law has for centuries been – as Nicholas Kasirer once put it – ‘chaos with an index’. Does this mean that there has been no ‘democratic bargain’ before the arrival of the New Oxford School of Taxonomists? And what of Germany, which for several centuries (since the Usus Modernis Pandectarum) has had one of the most ‘coherent’ patterns of legal thought? Does this country's history exhibit a shining example of the ‘democratic bargain’?
As Stephen Waddams and others have shown, seeking a coherent taxonomical model from which predictable solutions can be inferred is a myth. Because (for example) facts can be stated at countless different levels of generality and because judges reason using a whole range of different schemes of intelligibility (causal, functional, structural, hermeneutic, dialectical etc) no solution is ever completely predictable (especially in the hard case). Perhaps Descheemaeker has a response to these criticisms of mapping theory, but – and this is unforgiveable – he does not engage with them in his book. Indeed Professor Waddams does not even get a mention in the index. A Lord of Appeal, it does have to be said, seems attracted by this kind of taxonomical coherence (Foreword, pp. vii–viii), yet this is perhaps worrying to the extent that the learned judge seems to be in some agreement with Descheemaeker about the Spring case.
This is worrying because the Spring case arguably illustrates in itself the whole difficulty of trying to produce a coherent taxonomy within the common law. The argument that Birks and Descheemaeker make is that in allowing Mr Spring to succeed in the tort of negligence in respect of the loss he suffered as a result of an inaccurate reference the judges have undermined the tort of defamation. In this latter tort a reference writer is liable only if he has acted out of malice. The assumption of course is that we should all treat Mr Spring as having suffered from an invasion of his reputation interest, a ‘fact’ exclusively confining the facts of the case to the category of defamation. But why should one not treat Mr Spring as having suffered an invasion of his financial interest and thus, like the claimants in the Hedley Byrne line of cases, be entitled to a remedy in the tort of negligence? In press interviews at the time, Mr Spring himself pointed out that he had suffered considerable financial loss. Had he not suffered this loss as a result of a serious misstatement? What Descheemaeker seems to be asserting is that we must view the facts as involving reputation rather as a theologian might assert that we must view God in this way and not that way. What is the authority for such an assertion? It is in the end, one supposes, the ‘democratic bargain’, which is, as mentioned, no authority at all (one can imagine the Daily Mail headline: ‘Taxonomical crisis! The Democratic Bargain Threatened’).
So, to return to the question of taxonomy in the common law, what is Dr Descheemaeker's thesis for reforming the law of wrongs – for unbending the bent categories? Interestingly, after a fine discussion of the doctrinal literature, he rejects the division between delict and quasi-delict (pp. 282–283), opting instead for a mos anglicanus version of the Roman tripartite structure of dolus, culpa and casus (p. 263). Such an approach, he says, would help cure the common law of its ‘recipe’ thinking, inherited from the forms of action, and slowly propel it towards a rearrangement that is the precondition for the necessary reform of tort law itself (p. 264). This taxonomical reform would ‘unbend’ the law so that there would be no further clashes between these different ‘recipes’ (or ‘props’ as the author goes on to call these forms of action recipes). Negligence and defamation would no longer “clash at their point of intersection” and it would be possible “for the law to start growing again” (p. 265).
Dr Descheemaeker reminds us that one of the problems with English law is that the scars of the forms of action are “still plainly visible today”, the principles which have emerged from their “interstices”, quoting Henry Maine, still being in need of arrangement (pp. 192–193). Yet one is of course reminded of Henry Maine's other great dictum in his Early Law and Custom. In the 17th century, Maine said, law reform was “rather a reform of law-books than a reform of law” and he contrasted this paradigm with the post-Bentham view that pre-occupied the legislators of 19th century Britain. On reading Descheemaeker one might be forgiven in thinking that we are witnessing something of a return to the era of Domat. In fairness, as Maine himself said, this “was a great juridical era” (and historically speaking it was). However in an era where the great majority of tort actions are claims for personal injury arising out of accidents on the road and in the workplace – actions where liability is still bizarrely based on individual acts (fault) despite the statistical evidence that such injuries are the predictable costs arising out of the two activities – one does have to wonder whether thinking about taxonomy is really where the focus should be.
Tort itself is indeed stuck in the past, but this is really not because academics have not thought carefully enough about classification. The problem of tort is to be found in the defence of special interests, in the lack of political will to reform the system and in a judiciary trained in a discipline that owes more to theological thinking than social science research. And so while Dr Descheemaeker's book is genuinely to be welcomed as a fine piece of historical research and analysis on the doctrine devoted to legal classification, it is probably not to be taken too seriously as a contribution to social science investigation and to law reform (unless one works for an insurance company).
