ABSTRACT
As considered in the introduction to this book, the principal focus of the contributors has been as
to the manner in which proprietary and personal remedies are awarded and how their awards are
justified or explained. In particular those contributions concerned with restitution have focused on
technical, doctrinal and taxonomic matters rather than on any concern as to the justifications for
property law itself.1 Within the essays in this collection is a straightforward division in opinion as to
whether or not it is possible to achieve a taxonomy which will deal effectively with the range of
property-based claims considered here.2 So Jaffey3 presents an account of the lack of a viable
questions the basis of the current unjust enrichment taxonomy and Rotherham5 has encourages us
to believe that we should think about the law as being more open-textured than such a rigid
taxonomy would allow. Much of the debate has centred around the division between property,
obligations and unjust enrichment.6 Or should that be between property, contract, tort and unjust
enrichment? Or should we be most concerned with whether or not unjust enrichment and
restitution are necessarily to be linked together under the quadration thesis?7 What of the trust:
It could be said that these rival starting points coalesce around a more profound issue: whether
a rigid structure is necessary for there to be something which we can rationally describe as
coherent private law;9 or whether it is enough that we identify a range of general principles in
response to which rights, duties and goods are dispensed by the courts within a more general
discourse as to the nature of those rights? The former approach is concerned, inter alia, with the
legitimacy and effectiveness of private law if its principles are not ordered and clear. Little is said in
such taxonomies about the reasons why one view is better than another: clarity is itself considered
to be an intrinsic good. The latter, flexible approach has a less intuitive appeal for lawyers, in part
because it appears to be disordered and in part because it appears to leave judges too much
discretion.10 Alternatively what it might offer is a means of applying public policy in a way that is
sensitive to context and reactive to change. The ideal system, however, would appear to respond
slavishly to neither pole but rather to reside somewhere in between.
