Date: Thu, 13 Dec 2007 00:23

From: Stephane Beaulac

Subject: Obligations in the common law

Bonsoir,

My first time jumping into a discussion ... feel like quoting Madonna here.

I would agree that 30 years ago, one would not hear "the law of obligations" very often in anglo-saxon jurisdictions (especially in the U.S.) but, ironically, you would have probably heard the expression 100 or more odd years ago. What I am getting at is that, through their university legal studies in Britain (and even in some Commonwealth countries), students were taught civil law (as well as canon law), which explains that a lot of "civilist" stuff got into the common law, through the back door sort of thing (obligations being one such concept). Oxford and Cambridge, in particular, used have civil law programmes which, until recently, really meant that they taught civil code-based normativity (not any of that judge-made-law non-sense!). Though not put in these words anymore since the beginning of the 20th century, the substance is still palpable (as Jason suggested); proof that there are many things indeed that rule us from the grave in common law. Of course, in the modern context of the so-called "conversion" of legal traditions in the EU environment, as well as the whole transnational stuff happening, there is increased cross-fertilisation. I expect that (the watered down version of) the Constitution for the EU will confirm the trend in Europe. For a critique of that position, see Pierre Legrand's scholarship.

Beside all of that though (especially coming from University of Montreal), I would say: Blame it on McGill's transsystemic law heresy !?!

SB

Dr Stéphane Beaulac (Cantab.)

Associate Professor
Director of the Quebec Journal of International Law
Faculty of Law, University of Montreal
Canada

________________________________
De: Chaim Saiman
Date: mer. 2007-12-12 18:03
Objet : obligations in the common law

OK, so Jason has addressed how this group got its name, but I guess I am more interested in what stands behind it.

How is it (and since when) do common lawyers know what the "law of obligations" is? My guess is that 30 years ago common lawyers would not have used this term. I assume that this has something do to with the Europeanization on English law.

Jason's answer suggests 3 possible explanations.

1. Canadian lawyers trained in both common and civil law and spread it to England and the rest of the commonwealth (and perhaps the case can be made for other mixed jurisdictions that taught it to the non-mixed jurisdictions).

2. Roman law trained Peter Birks introduced it to English legal academics and from there is spread to other commonwealth academics.

Or 3, some combination between 1 and 2.

I'd be interested to hear views on which seems more correct. Also, is this solely a term used by scholars or do the English (and other commonwealth courts use it as well?

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