Private Law Theory

Value pluralism and its conceptual companion, incommensurability, permeate law generally, and in particular the common law. Their significance for the common law reflects the authority which a common law system gives to judges to fashion rules of law when articulating their application to particular cases. This tends to lead them to examine the reason of the law and to seek to conform the content of legal rules to a material degree with the underlying rationale or rationalia for them. As Sir Edward Coke said in the seventeenth century, ‘Reason is the life of the law, nay the common law is nothing else but reason’, albeit this is a technically trained and in that sense artificial form of reason …

Lord Sales, Default Rules in the Common Law: Substantive Rules and Precedent (Presentation at International Workshop on Default Rules in Private Law), Oxford, 24 March 2023.