LAUSR

The first issue of the Modern Law Review in 1937 carried an article by Richard O’Sullivan KC entitled ‘A scale of values in the common law’. In his corpus of writings, O’Sullivan made two central claims. The first was that there was a scale of objective values which gave shape to the common law, and which promoted human flourishing. The second was that the common law was superior to the civil law because, by not relying on Roman law sources, it had been better able to give effect to the civilising elements in Christianity. Nicholas McBride begins the first volume of his two-part work, The Humanity of Private Law, by stating that he wants to explore whether Richard O’Sullivan was right to claim that ‘The Common Law of England is one of the greatest civilising forces in the world’ (p 1). In order to do that, McBride has to enable his readers to see the wood for the trees. His topic is English private law. Like Ronald Dworkin’s super-human judge, Hercules, McBride has set himself the challenge of making sense of the confusing forest of common law judgments across the areas of tort, contracts, trusts, and restitution, companies, marriage, and gifts and wills. Like Hercules, McBride is not looking to account for each and every decision every made by a judge, no matter how myopic, misinformed or misdirected (p 39). Instead, McBride is seeking, as Dworkin urges Hercules to do, to provide an explanation for the private law rules of the common law which balances Dworkin’s twin criteria of justification and fit (p 31, p 240). McBride offers his readers what he regards as the best possible explanation of as many as possible of the common law’s leading cases in private law (p 27). McBride takes tort law, on which he has co-authored a textbook (now in its 6 edition) as the area of law with which to illustrate his thesis, before expanding his analysis to cover the other areas of English private law. In such an undertaking there is always room to contest McBride’s reconstruction of particular details: is Hedley Byrne v Heller really about the courts trying to get round the doctrine of consideration or is its motivation an attempt to avoid the doctrine of privity of contract? (pp 236– 237), is McBride too hasty in his assertion that the defendant’s liability – in the notoriously difficult case of Kelly v Solari – to repay money mistakenly paid must not be wrong-based? (p 55), does McBride take insufficient account of the effect the availability of insurance has had on the imposition of tortious duties? (p 247). But they are only quibbles. McBride’s reconstruction of the common law from predominantly English sources is very largely successful even when his assessments regarding rights (pp 43–54) or unjust enrichments (pp 194–198) are controversial. The Humanity of Private Law is a tour de force of legal interpretivism which Dworkin would have lauded.