Download e-book for kindle: Exploring Private Law by Elise Bant, Matthew Harding

By Elise Bant, Matthew Harding

ISBN-10: 0521764351

ISBN-13: 9780521764353

Exploring deepest legislations provides a set of essays, by means of prime students from the world over, on deepest legislations doctrines, treatments, and strategies. The overarching objective of the gathering, encouraged via contemporary debate, is to have fun and illustrate the contribution that either 'top-down' and 'bottom-up' tools of reasoning make to the improvement of personal legislation. With that objective in brain, the members to the gathering discover a number of subject matters of present curiosity: judicial ways to 'top-down' and 'bottom-up' tools; educating trusts legislation; the safety of privateness in inner most legislations; the improvement of the legislation of unjust enrichment; the non-public legislation effects of robbery; equity's jurisdiction to alleviate opposed to forfeiture; the character of fiduciary relationships and responsibilities; the tasks of trustees; repayment and disgorgement treatments; partial rescission; the position of unconscionability in proprietary estoppel; and the character of registered identify to land.

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The paper is in three parts. The first tracks Australia’s journey from legal colonialism, through the development of a species of legal realism in the Mason years that focused on developing an Australian common law and embraced comparative developments from other common law jurisdictions, to the development of the current and fairly restrictive form of legal nationalism. This last stage of development is evident in the current High Court of Australia’s emphasis on the unification of the common law of Australia and the importance of strict doctrinal analysis and the rule of precedent over broader questions of policy.

And we hope that in doing so, the essays reflect both Michael’s own refusal, over the years, to engage in what Robert Chambers in his essay calls ‘arid debates about classification’, 5 as well as his suspicion of what might be called the ‘forest floor’ method of reasoning by analogy from case to case with little effort – at least explicitly – to identify overarching principles of likeness that could guide the analogizing. 6 A pluralistic method that takes in both styles of reasoning is, in our view, fitting to thinking about law, given that law entails a sophisticated array of human practices and institutions that on the one hand must reflect and respect, and on the other hand shape and bring order to, the diversity and messiness of human life.

This first part, then, introduces the methods of legal reasoning – top-down and bottom-up – that the essays in the rest of the book explore and exemplify in specific legal settings. Part I commences with Keith Mason’s essay on judicial method. In many ways, this essay exemplifies the aim of the whole book: to show the ways in which a pluralistic method assists the development of private law, and how this must and should be so. 7 He argues that the Court’s repeated castigation of top-down method is a departure from Posner, and is inconsistent and unjustified.

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Exploring Private Law by Elise Bant, Matthew Harding

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