Category Archives: Taxonomy

Jason Varuhas, ‘Taxonomy and Public Law’

Abstract: This paper (i) identifies the reasons for the general absence of legal taxonomy in public law scholarship; (ii) argues that legal taxonomy and taxonomic debate is vital to the principled development of public law and rigorous legal analysis, and is of acute importance today given trends towards open-ended balancing in public law adjudication which […]

Gianclaudio Malgieri, ‘Property and (Intellectual) Ownership of Consumers’ Information: A New Taxonomy for Personal Data’

Abstract: This article proposes a new personal data taxonomy in order to determine more clearly ownership and control rights on different kinds of information related to consumers. In an information society, personal data is no longer a mere expression of personality but a strong economic element in the relationships between companies and customers. As a […]

Sheehan and Arvind, ‘Private law theory and taxonomy: reframing the debate’

Abstract: The aim of this paper is to reframe the taxonomy debate which has, in recent years, come to dominate private law theory. We argue that the debate to date has been flawed by two fundamental mistakes. First, little attention has been paid to how legal taxonomies are actually used. This, we argue, is regrettable: […]

Hanoch Dagan, ‘Doctrinal Categories, Legal Realism, and the Rule of Law’

Abstract: Properly understood, legal realism stands for the conception of law as a going institution (or set of institutions) distinguished by the difficult accommodation of three constitutive yet irresolvable tensions: between power and reason, science and craft, and tradition and progress. Realists argue that the availability of multiple, potentially applicable doctrinal sources renders pure doctrinalism […]

Michael Lobban, ‘Mapping the Common Law: Some Lessons from History’

Abstract: This paper explores the ways in which jurists from the 17th to the 19th centuries attempted to map the law. There were multiple ways of mapping the law and its concepts. No single taxonomy was comprehensive. The most general maps were found in treatises, organised largely around the rights of person and property. However, […]

Gerald Postema, ‘Law’s System: The Necessity of System in Common Law’

Abstract: TE Holland infamously described the common law “chaos with a full index” and critics from Jeremy Bentham to Peter Birks have criticised common law for its manifest absence of system. Defenders of contemporary common law celebrate its alleged resolute anti-theoretical stance and resistance to systematisation. However, this characterisation of common law, shared by defenders […]

Peter Watts, ‘Taxonomy in Private Law – Furor in Text and Subtext’

Abstract: This article starts with an overview of the debates that took place in the latter period of Peter Birks’s career over classification in private law. It does so by setting out the Birksian taxonomy, collecting various extracts from Birks’s voluminous output, and then contrasting those extracts with the views of a selection of his […]

Gerald Postema on ‘Law’s System: The Necessity of System in Common Law’ – UCL Faculty of Laws, 20 May 2014

TE Holland infamously described the common law as ‘chaos with a full index’. One might detect a note of perverse pride in that quip, something entirely missing from Bentham’s summary dismissal of the common law of his day as harmful fiction. More recently, Peter Birks criticized contemporary common law for its manifest ‘absence of system’, […]

Carmine Conte, ‘From Only the ‘Bottom-up’? Legitimate Forms of Judicial Reasoning in Private Law’

Abstract: This article explores the dichotomy between ‘bottom-up’ and ‘top-down’ legal reasoning in the private law context. It considers the High Court of Australia’s recent allegations that: first, ‘top-down’ legal reasoning is illegitimate in private law judicial decision-making; secondly, any arguments adopting this reasoning structure are unacceptable, such as those deriving from the Birksian model […]

Book Review: Tort Law Defences by James Goudkamp (2013)

“This book is concerned with defences in tort law, and, in particular, with creating a taxonomy of defences in order to promote clearer thinking and more coherent legal development. It is an original and ambitious project. As James Goudkamp reminds us, no similar investigation has previously been undertaken, and the lack of earlier systematic analysis […]