Common law adjudication often appears like a patchwork of decisions with limited overall coherence. Are there any fundamental theoretical principles that can help us gain a deeper understanding of the common law and its workings, both as legal scholars and as practitioners? The central aim of this module is to identify such principles, use them to critically evaluate the common law, and examine how they operate in court cases. The module consists of three parts, as follows.
The first part looks at the common law from the perspective of political and legal theory concepts such as the rule of law, democracy, separation of powers, and social utility and change. It discusses questions such as: Do common law judges make policy? Is the common law undemocratic? Is the common law able to provide the certainty required for modern commercial life? The learning will include, inter alia, a case study, whereby students will have the opportunity to apply the above themes to a court case of their choice.
The second part looks at the common law’s operation in a colonial context. Here the common law will be discussed, e.g., as an arena of struggle for emancipation from colonial power, and special attention will be given to the delicate interface between the common law and local norms (such as customary and religious laws) in colonies or former colonies.
The third part turns the spotlight onto private law as a central area of common law adjudication. It explores questions such as: Is there a unifying theory that can hold together different areas of private law, such as tort, contract, and property law, and, if so, what is that theory? Should common law judges use private law as an instrument for advancing of policy goals, such as social utility or more equitable distribution of wealth, or should they focus solely on correcting wrongs? Graduates of this module will gain a theoretically-informed insight into the common law, which would benefit their work as practitioners and scholars alike.
30 credits