ABSTRACT
In fact, some would argue (see Chapter 14) that rigidly to distinguish between theory and practice and between the comparative and the analytical is misleading, particularly with respect to a work on the law of obligations. It is misleading because, as we have already seen, this is an area of private law that is common to the whole of Europe and has a history going back to the earliest days of Roman law. Consequently it is simply unrealistic to think of the various analytical structures and ideas as belonging to a single nation state or single intellectual tradition. The modern law of obligations has been a melting pot of ideas coming from a variety of directions – from commerce and the lex mercatoria,101 from academic traditions ranging from scholasticism to the mos geometricus102 and from social facts embracing almost everything from bear pits to dangerous underpants.103 And while the common law may well have been isolated from some of this, it would be very wrong to think that scholasticism, commerce and social fact have not injected into the common law ideas and methods which, when mixed with its own particular history, make it of relevance to anyone wishing to have knowledge of Western law.104 Indeed the importance of the common law’s own contribution to legal methodology is increasingly being recognised by civil lawyers. The New Dutch Civil Code (Nieuw Nederlands Burgerlijk Wetboek), for example, has specifically moved away from a mos geometricus view of law105 towards one that is more in line with the English approach. It recognises the importance of judge made law and reasoning by analogy and it sees legal development as being an interaction between legislator, judge and law professor.106
