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I did not think obviousness was a non-serious issue, though it has indeed been trivialized in order to be dismissed. My point was not that SH was as bad as the Nazis but that every argument in the form 'It is obvious that ...' is anti-rational, in that it evades the giving of reasons and conceals errors. It is obvious that an apple which detaches itself from a tree will fall to the ground. But if we had stopped there we would never have found out why. I dispute the assertion that rationality in law is different from rationality in the natural sciences but, leaving that large question on one side, I take it that SH cannot mean that law differs from physics in not needing to discover reasons.

In Chandler v Webster the view was taken that money payable under a valid contract could not be recovered even if the contract was later frustrated and the payer got nothing for his payment. In Fibrosa a different view prevailed. The difference requires to be explained, and it can only be explained through a discussion of the reasons why restitution is given. What advance can we make if one protagonist says that Chandler was obviously right and the other says that it was obviously wrong, and both insist that obviousness is an argument behind which it is not necessary to go? If someone were to maintain money paid under a judgment which was valid at the time of the payment should not be recoverable even if the judgment was later reversed, we would likewise have to meet his argument with an analysis of the reasons why restitution is ordered.

I confess that I would hardly know what law was, or how to mark a law examination, if 'It is obvious that ...' were thought to be a good argument. Presumably a student's 'It is obvious ...' would have the same validity as a judge's.

Peter B H Birks, QC, DCL, FBA
Regius Professor of Civil Law
All Souls College Oxford OX1 4 AL
Tel: 44 - (0)1865-279338
Fax: 44 - (0)1865 279299

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