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Date: Thu, 13 Dec 2007 13:43

From: Tariq Baloch

Subject: Obligations in the common law


Dear Chaim,

I think common lawyers have long been familiar with the term and well aware of the extent to which the common law coincides with the civil category. It may not always be visible but here are some examples that may (or may not) provide some further lines of inquiry:

In private International law, lawyers would have had to get to grips with different sorts of classification; a good example and source here is

J Westlake, A Treatise on Private International Law (1859), see generally the chapter on "International Law of Obligations", and esp art 104 [120] where English law in this area is discussed.

Other sources:

S Amos, A Systematic View of the Science of Jurisprudence (1872) - good early example of classification discussion (with ref to civil law and common law)

WW Home, Studies in the Civil Law and Its Relation to the Law of England and America (1896), see the chapter "Obligations: And Herein their Sources", esp 108

W Holdsworth, Historical Introduction to Land Law (1927), 140.

And finally an 18th century example:

J Ayliffe, A New Pandect of Roman Civil Law, as anciently established in that empire ... (1734) esp xlvii (near bottom where he discusses how someone has passed off a classification from roman law which include obligations as common law).




On 12/13/07, Beaulac Stephane wrote:


My first time jumping into a discussion ... feel like quoting Madonna here.

I would agree that 30 years ago, one would not hear "the law of obligations" very often in anglo-saxon jurisdictions (especially in the U.S.) but, ironically, you would have probably heard the expression 100 or more odd years ago. What I am getting at is that, through their university legal studies in Britain (and even in some Commonwealth countries), students were taught civil law (as well as canon law), which explains that a lot of "civilist" stuff got into the common law, through the back door sort of thing (obligations being one such concept). Oxford and Cambridge, in particular, used have civil law programmes which, until recently, really meant that they taught civil code-based normativity (not any of that judge-made-law non-sense!). Though not put in these words anymore since the beginning of the 20th century, the substance is still palpable (as Jason suggested); proof that there are many things indeed that rule us from the grave in common law. Of course, in the modern context of the so-called "conversion" of legal traditions in the EU environment, as well as the whole transnational stuff happening, there is increased cross-fertilisation. I expect that (the watered down version of) the Constitution for the EU will confirm the trend in Europe. For a critique of that position, see Pierre Legrand's scholarship.

Beside all of that though (especially coming from University of Montreal), I would say: Blame it on McGill's transsystemic law heresy !?!



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