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appears like a set of rules; yet… [t]he “rules” are…no more than renditions by later judges of patterns which they perceive as having emerged from discrete and particularistic judicial interventions… Common law “rules” having minimal prescriptive impact, the courts effectively make and unmake the law at will’ (Legrand, ‘European legal systems are not converging’ (1996) 45 ICLQ 52, pp 67–68). As legislation increasingly becomes the main source of English law, will this view of the common law have to change? Is Legrand saying that English law can be described by rules but does not consist of rules? 5 Professor Peter Birks has criticised Spring on the ground that two legal categories intersect. Defamation, which is an infringement of the reputation interest, intersects with negligence, which is a wrong based on a species of fault. According to Birks, this leads to a situation where a careless invasion of the reputation interest could give rise to two wrongs, namely defamation and negligence, when a rational system should see only one wrong. In order to give intellectual support to his criticism, he draws an analogy with zoology: ‘My canary is yellow and eats seeds. If all birds are seed-eaters, yellow, or others, my canary counts twice. Are there two birds or one? If there come to be two birds, the double-vision is due to the bent classification. There is only one bird’ ((1996) 26 UWAL Rev 1, p 6). Is this criticism based upon a sound epistemological (theory of knowledge) understanding of the role of taxonomy? Is there not an important difference between taxonomy schemes based on observable objects (plants, animals, rocks, etc) and schemes, like law, based on what Villa has called ‘atypical objects’, which cannot be observed without the aid of concepts and theoretical categories (La science du droit, 1990, Story/LGDJ, p 84)? Are not these concepts and theoretical categories part of the ‘science’ (that is, law) itself, thus making law the object of its own science? If so, is not the result as follows: that there is no rigour emanating from the object of science and that law is free to construct or deconstruct its own objects? Is this not what happened in Donoghue v Stevenson. Indeed, if Birks is right, could it
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Lord Simon of Glaisdale:… It is, in general, the difference between mature and rudimentary legal systems that the latter deal specifically with a number of particular and unrelated instances, whereas the former embody the law in comprehensive, cohesive and rational general rules. The law is then easier to

understand and commands a greater respect. Fragmentation, on the other hand, leads to anomalous (and therefore inequitable) distinctions and to hedging legal rules round with technicalities that are only within the understanding of an esoteric class. The general development of English law (like that of other mature systems) has been towards the co-ordination of particular instances into comprehensive and comprehensible general rules. The evolution of the compendious tort of negligence from a number of disparate forms of action is a well known example from the common law: the Theft Act 1968 may be regarded as a statutory counterpart. (I must, however, add the rider that English law has never felt bound to carry every rule to its logical conclusion in the face of convenience.) But the common law proceeds generally by distilling from a particular case the legal principle on which it is decided, and that legal principle is then generally applied to the circumstances of other cases to which the principle is relevant as they arise before the courts…

Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70 House of Lords

(See p 104.)