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If the trouble lay in the field of the unjust factor, it would be possible to pursue the question whether these cases should be explained as restitutionary, albeit not as instances of unjust enrichment. But when the deficiency is in the enrichment, they cannot be cases of restitution at all. His position is incoherent.

He says these claims are restitutionary, but still understands them as claims which are not gain-based. In other words he keeps them in restitution when they ought on his premises to be thrown out. We have just seen that one of his examples slips up. It turns out that on the facts as he sees them the cases in question are not even instances of restitution. We have been assuming that various instances of unjust enrichment would still survive.

But that turns out to be doubtfully correct. He seems to think that all that can remain is non-voluntary transfer of incontrovertible enrichments with corresponding impoverishment of another or, more shortly, non-voluntary enrichment at the expense of the plaintiff. It signifies that the only acceptable unjust factor is non-voluntariness, a generalisation which serves to align with mistake all other factors which, to a degree which the law regards as sufficient, impair or qualify the decision to transfer, such as pressure, undue influence, failure of consideration. In addition, enrichment, according to Jackman, is to be strictly limited to money and a narrow category of necessaries.

It is not entirely clear whether Jackman intends to assert that that is the only content of the law of unjust enrichment or wants to go further and say that the higher generalisation must never be used. I think he intends the latter, though in fact nobody can dictate the level of generality at which people choose to speak. A system could be said to have a law of unjust enrichment even if, when it comes to the point, the only discoverable case was the payment made by mistake of fact.

The reason why Jackman would prefer our system to speak only at the lower level of generality is that he takes the view that a category becomes incoherent if it relies on more than one conception of justice. Take, for example, the category of wrongs or, rather narrower, torts. Every wrong is a wrong for a slightly different reason, which is as much as to say that each wrong rests on its own conception of justice. There are as many such conceptions as there are protected interests.

The heterogeneous ideas which underpin defamation, harassment, nuisance, battery, abuse of confidential information, and so on, do not prevent us classifying them, with others, as wrongs. In the great Woolwich case the House of Lords decided that the ground rule in England, in the absence of a statutory scheme, was that money obtained by a governmental body in pursuance of an ultra vires demand must be given back.

But suppose, as may be correct, that the explanation is simply that respect for and confidence in the rule of law requires a public body to return money which it never had power to demand. They cannot fit in his cut-down remnant of the causative event unjust enrichment at the expense of another.

As stated they are not examples of non-voluntary transfer. They appear to have no place in his scheme. Yet they are only excluded because of his dogma that in every case the factor providing the reason for restitution must be the same.

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That is unreasonable, even absurd. The truth is better stated by saying that the unjust factor, though very frequently the non-voluntary character of the transfer, may sometimes be of a different kind. It may sometimes be defendant-sided rather than plaintiff-sided, turning on the shabby character of the receipt.

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On other occasions the relevant factor may transcend plaintiff and defendant and consist simply in one of a number of overriding reasons why a benefit should be given back. Restitution is multi-causal. But in splitting off restitution for wrongs he takes away nothing that was ever meant to belong within the law of unjust enrichment, and in trying to split off restitution of services and other benefits in kind he probably turns out to be saying nothing more than that where the defendant has not been enriched there can be no restitution on any ground at all, a proposition which no-one would dispute.

Had he explicitly adopted the taxonomy of causative events which affirms that all rights arise from manifestations of consent, from wrongs, from unjust enrichment, or from miscellaneous other events, he could have discovered instances of restitution in the first and fourth categories too and would thus have strengthened his picture of the now indubitably multi-causal nature of restitution. We can agree that there are varieties of restitution, the varieties being differentiated by the nature of the causative event which triggers that response.

No injury has actually been inflicted on the law of unjust enrichment, which has lost nothing that it would wish to keep and continues to hold its place as one genus in the fourfold taxonomy of causative events: consent, wrongs, unjust enrichment, miscellaneous other events. However, that is not quite the end of the story.

Mr Jackman identifies, though he never pursues, one more obstacle to the unified integrity of the law of unjust enrichment. There is the historical fact of the duality of common law and equity, and, seemingly, in his view equity cannot but go its own way:. This statement supposes that, even if the common law could be admitted to have a law of unjust enrichment, equity would have nothing to do with it. That this is prima facie an unacceptable proposition may be seen from the curious consequences which a parallel suggestion would have for a more familiar field, as for instance for the law of contract.

All the books about contract draw on both streams of case law. Their subject is compounded of both common law and equity. In relation to promises unsupported by consideration, in relation to vitiating factors, and in relation to remedies, the equitable contribution is very prominent. One might infer that in the same way the two streams would have no difficulty in contributing to the law of unjust enrichment.

One is that equity is by comparison with the law more sophisticated, subtle, and flexible. The other is that equity is differently ordered and, by inference, must stick to its own ordering. Of these the first is mere rhetoric, either false or meaningless. Different judges and jurists have different styles.

The rather loose notion of style is compounded from different notions of the nature of law and the judicial function and different intellectual attributes. Some judges are more dynamic in their interpretation than others, some are more learned than others, some more ingenious than others. Bodies of case law, however defined, have the potential for interpretation which displays those qualities.

Some of the most stubbornly conservative judges have been Chancery lawyers, while from Lord Mansfield to Lord Devlin the common law has produced legal minds lacking nothing of the flexibility and sophistication which Jackman claims for equity. The case law of the Chancery has no claim whatever to greater sophistication or flexibility than that of the courts of common law. Occasionally the reverse might seem more true. These bad patches are repaired by the same people using the same juristic techniques. The second assertion is that equity is differently ordered, so differently that it cannot be integrated with the common law.

I want to suggest that this too is false. The case of contract has already been mentioned. No difficulty has been experienced in integrating the equitable contribution to that subject. One day the law of torts meaning the law of wrongs rooted in the common law will be transformed into the law of civil wrongs, by the addition of wrongs rooted in the jurisdiction of the Court of Chancery such as abuse of confidential information and breach of fiduciary duty. No special difficulties impede that integration.

Mr Jackman, reinforced by Justice Gummow, asserts that it just cannot be done. The truth is quite to the contrary. Classification is indispensable. Neither the universal diversity in which we find ourselves, nor any one of the sub-diversities within it, of which the law forms a single example, can be made manageable without classification. Rational thought being impossible without taxonomy, the law must make its taxonomy explicit.

It follows that equity has no choice but either to accept the taxonomy of the common law or to replace it. Every taxonomy is in the nature of a provisional hypothesis. The fourfold classification of rights by causative events is no exception. Equity must either accept it or show that it can be bettered.

If it can be bettered, then of course it will be bettered for the whole law, not just for one wing of the ancient duality. In short, both law and equity must subscribe to the same taxonomy of events, and it must be the best taxonomy that taxonomic debate can generate.

In the natural world the classification which rested ultimately on the work of the great Linnaeus, exquisite as it was, is now being overthrown by the modern science of genetics. Since Watson and Crick discovered the structure of DNA it has become possible to show that, as all good scientists know of all orthodoxies, the Linnaean classifications were no more than the best available hypotheses; and that there are now better available hypotheses.

It would be sheer madness wilfully to stick to a hypothesis which has been bettered, still madder to stick to it here and abandon it there, to stick to it in forestry while teaching in botany that it had been superseded. It is in the nature of competing classifications, like all competing hypotheses, to fight to the death. No less than every department of learning about the natural world, the law would stultify itself if it did not subscribe to the aspiration to use only the best taxonomy currently available. A third way might suggest itself. Could equity refuse outright to accept the necessity of classification?

That would entail a rejection of rationality in favour of intuition.

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At this point in the development of our jurisprudence it ought not to be necessary to spend time showing that inscrutable intuition is the enemy of the rule of law. Beginning law students are often driven to desperate guesswork. Some of them later persist in the same line of thought, learning only to clothe it in more grown-up words. The fashion at the moment seems to be to invoke the impressive-sounding language of conscience and unconscientiousness. Of those attracted to that usage, a few then attempt to make some sort of historical case for their approach. They think they find a warrant for it the Court of Chancery.

Was not the Chancery a court of conscience? Those who invoke the Chancery to legitimise the use of the language of conscience have to answer a crucial question as to their understanding of its meaning. By conscience do they really mean the intuitive understanding of the difference between good and evil, or do they mean the taxonomised and systematised understanding of that same difference, as taught by St Thomas Aquinas, reinforced by the authority of the church, and still expounded by serious natural lawyers such as John Finnis? Very few who want to deal in the language of conscience will turn out to belong in the Aquinas—Finnis camp.

For that camp will have nothing whatever to do with the rejection of reason. Conscience in their sense calls for careful attention to classification and analysis, accurate discrimination between reliance on logic and reliance on other forms of argument, all the apparatus of reason.

Only the intuitionists find themselves in a hopeless cul-de-sac, those whose appeal to conscience is intended to justify dispensing with all that troublesome apparatus. There are two reasons why we may be sure that the intuitionists must either perish in their cul-de-sac or reverse out of it. One has nothing to do with history.

It is that our society is now of such a nature as to have no faith in mere intuitions as to right and wrong, if only because, beyond a handful of simplicities, our intuitions do not all work alike. In the very early days of our law, when juries were given precious little guidance as to what the law might be, the tacit assumption of the system in both civil and criminal matters was that the intuition of right-thinking people would come up with the right answer.

The premise was a monolithic moral solidarity. Our society has moved a million miles from that. We now have multi-dimensional pluralism, of culture, morals, and religion, and of experience in different socio-economic sectors. Our consciences are all loaded differently. There is therefore no option. In a complex, plural society, the law, if it is to work and keep working, must be transparently articulated.

It can perhaps never be perfectly autonomous. But it must be as autonomous as it can be made. Look, I will show you. So, even if there were a historical warrant for intuitive decision-making in the name of conscience, there would be no room for it in the modern world. But the second objection is that there is no historical warrant.

Conscience, undisciplined by the apparatus of reason, is an alias for the will of those in power. They have only to believe that what they are doing is right, and conscience will justify them, at the same time blinding them to the possibility of error. It is only a matter of degree. If your intuition tells you that you are right, you will not be able to see that you may be wrong or, in a plural society, that others may think you wrong. The great errors are mercifully rare; the lesser errors are of day to day concern.

At that more mundane level conscience of the intuitive kind is nonetheless antithetical to the rule of law. Sir Edward Coke saw the Chancery under Lord Chancellor Ellesmere as an instrument of Stuart prerogative power, and the Court of Chancery came within a whisker of being swept away with the Star Chamber.

Its anxiety for certainty and predictability was carried to extremes. Whatever the historical truth, the students who seek to solve every problem by directly applying their own sense of fairness are indeed rejecting the whole notion of an articulated taxonomy of the law. They think that conscience, alias intuition, alias gut reaction, can suffice.

Every argument which rests on words of unanalysed approbation and disapprobation is in some degree a rejection of the rule of law. When Mr Jackman says that equity cannot acknowledge or be brought into line with a law of unjust enrichment, he cannot mean that it must be left to do intuitive justice undisciplined by any taxonomy. Such a proposition would be inappropriate in a plural society and has, besides, no historical warrant.

Two possibilities remain: either equity must be allowed to use a different taxonomy, or it must overthrow and replace the taxonomy of the common law. We have already said that it is not in the nature of competing taxonomies to coexist. If they compete, they fight to the death. This can be illustrated from the competition between the taxonomy of that large part of equity which is the law of trusts and the taxonomy of rights by causative events which was used earlier. They do. They are trying to do the same thing. They are both trying to say how rights arise. One must therefore give way to the other.

Because it is almost impossible for different taxonomies to talk to one another. Suppose that I ask the keeper of the trusts taxonomy a question which comes from the taxonomy of causative events. We have constructive trusts of the proceeds of abuse of confidence, of bribes, of assets obtained in breach of fiduciary duty.

But they are all constructive trusts, as in the case of mistake. How can the trusts which arise from wrongs be in the same class as those which arise from mistake? Does not the Chase Manhattan trust jump back to the payor? But we call it a constructive trust. If this were really a conversation at a conference on comparative law, both parties could go home feeling pleased with themselves, ready to write up, and no doubt publish, the insights they had gained.

But this is a conversation within one system. A rational system cannot live with blocked synapses of this kind. There has to be a competition to the death, to choose one or other of the two classifications. The rights which arise under trusts trust-rights must be seen to arise from the events which create other kinds of rights. It is a question, first, of overcoming the barriers to communication, which means looking to see what is really going on beneath the labels, then of deciding which taxonomy is better.

The brilliant work of Robert Chambers has recently completed most of the first stage. I hope there will be no movement in favour of the latter, which seems to me to suffer from three defects. However created, all trusts can jump back, just as both carnivores and herbivores can be yellow. It obscures the line between consent-based rights and those which are raised by operation of law. In the Westdeutsche case, Lord Browne-Wilkinson evidently thought that an illegitimate sortie had been made by unjust enrichment into the alien territory of the law of property and, in particular, into the law of trusts, as though the law of trusts and the law of unjust enrichment were areas of law separated by clear water, and best kept that way.

It is equally plain that he thought that that sortie was motivated by a preconceived desire to ensure that plaintiffs in unjust enrichment should be able to obtain proprietary interests and consequent advantages in insolvency. The clear water between the two subjects is an illusion.

It is an illusion accentuated by incompatible software. Even if one subdues the illusion, it remains impossible to think clearly across categories which, with generically identical content, are differently divided. It seems highly unlikely that we will ever go over to arranging the law according to a proposition that rights are express, implied, resulting, or constructive. But the possibility remains that equity might yet field a more radical competitor. There is certainly one distinguished judge and jurist who believes that it does.

Justice Finn thinks that equity suggests an entirely different map. His map would give priority not to entitlement-engendering events but to entitlements which are responses to events. This is not his terminology, but it is used to maintain continuity in this discussion. It might immediately be objected that this would not compete with the classification of causative events, for it seems not to claim the same territory or do the same work.

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But on closer inspection it does. Because his scheme is premised on a refusal to classify events, indeed it would regard the classification of events as a serious error calculated only to impede the courts in their proper work. He would like to see a complete and orderly list of the entitlements which are recognised and realised by the courts, whether of common law or equity: entitlements to money compensation, money restitution, payment of fixed sums, specific orders of performance, delivery, and prohibition, the taking of accounts, and so on.

Nicola Griffith. Shree Paradkar.


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