The Common Law of Obligations: Divergence and Unity

Description

The development of the law of obligations across the common law world has been, and continues to be, a story of unity and divergence. Its common origins continue to exert a powerful stabilising influence, carried forward by a methodology that places heavy weight on the historical foundations of legal principles. Divergence is, however, produced by numerous factors, including national and international human rights instruments, local statutory regimes, civil law influences, regional harmonisation, local circumstances and values and different political and legal cultures. The essays in this collection explore the forces that produce divergence, the countervailing forces that generate cohesion and consistency in the common law of obligations, and the influence that the major common law jurisdictions continue to exert over one another in this area of law. The chapters in this book were originally presented at the Seventh Biennial Conference on the Law of Obligations held in Hong Kong in July 2014. A second collection, entitled Divergences in Private Law (ISBN: 9781782256601), will focus on particular departures from the common law mainstream and the causes and effects of those deviations. Preface Contents List of Contributors TABLE OF CASES TABLE OF LEGISLATION TABLE OF INTERNATIONAL INSTRUMENTS 1. Unity, Divergence and Convergence
in the Common Law of Obligations I. Unity II. Divergence III. Convergence IV. Theories of Unity, Divergence and Convergence V. Conclusion 2. The Influence of Comparative Law
on the English Law of Obligations I. Introduction II. The 'One Common Law' and Its Demise III. English Supreme Court Judges as Foreign Lawyers IV. Influence on the English Law of Obligations
of Foreign Law: A 25-Year Survey 3. Unity, Then Divergence: The Privy Council, the Common Law of England
and the Common Laws of Canada, Australia and New Zealand I. To the 1980s II. Individualised Justice, Setting Standards of
Conduct and Discretion in Remedy III. A Moral Endeavour and a Transparent Method IV. Conclusion 4. A Conscious Effort to Develop a 'Different' Common Law of Obligations: A Possible Endeavour? I. Introduction II. A Brief History of the Singapore Legal System III. Growth of a Singaporean Jurisprudence and a 'Different' Common Law of Obligations IV. Recourse to Foreign Cases V. Influence of a 'Different' Common Law of Obligations VI. Conclusion 5. A Common Law of Tort: Is there a European Rift in the Common Law Family? I. The Common Law Legal Family II. Divergence in the Common Law Family III. New Influences: Supra-national Law and Europeanisation IV. Is there a European Rift in the Common Law Legal Family? V. Conclusion 6. A Judicial Perspective on the Development of Common Law Doctrine in the Light of Statute Law I. Introduction II. Development of the Common Law by Analogy
from Statute: England III. Development of the Common Law by
Analogy from Statute: Australia IV. Relevance and Complications of Judicial
Resort to Policy Considerations Generally 7. Public Actors and Private Obligations: A Judicial Perspective I. The State as Litigant II. Public and Private Obligations III. Supervisory Jurisdiction IV. Private Law Actions V. Concluding Thoughts 8. The Tort Liability of Public
Authorities: A Comparative Analysis I. Introduction II. Development of the Law III. Explaining the Law IV. Conclusion 9. We'll Meet Again: Convergence in the Private Law Treatment of Public Bodies I. Introduction II. Sovereign Immunity and Its Decline
in the Common Law World III. Explaining Convergence: Common Legal Values IV. The Onward Journey V. Conclusion 10. How to have a Common
Private Law: The Presuppositions
of Legal Conversation I. Introduction II. Learning as Observation, Application and Engagement III. The Position IV. Topography of Meta-Ethics V. Possibility of Inter-Jurisdictional Conversation VI. Some Implications VII. Conclusion 11. The Philosophies of the Common Law and their Implications: Common
Law Divergences, Public Authority Liability and the Future of a Common Law World Prologue I. The Puzzle of the Authority of the Common Law II. Three Views on the Authority of (Common) Law III. Implications IV. Future of a Common Law World V. Concluding Remarks 12. Obligations, Governance and Society: Bringing the State Back In I. The Retreat of Obligations II. Bringing the State Back In III. Obligations and Regulation:
Describing the Relationship IV. Obligations in the Polity V. Managing Risk VI. Conceptualism and Social Needs VII. Conclusion: Constitutionalising Obligations Theory 13. Divergent Evolution in the Law of Torts: Jurisdictional Isolation, Jurisprudential Divergence and Explanatory Theories I. Introduction II. Divergent Evolution in the Law of Torts III. Jurisdictional Isolation IV. Jurisprudential Divergence V. The Future: A Self-Sustaining Reaction 14. Common Law Values: The Role of Party Autonomy in Private Law I. Party Autonomy II. Contract Law Generally III. General Issues: Judicial Interference
with Contract Terms IV. Implied Terms and Implicit Terms V. Exclusion of Liability Clauses VI. Express Termination Clauses VII. Penalty Clauses VIII. Conclusion Index