The historical and epistemological obstacles “Nevertheless,” he continued, “the terms which govern the obligations of the doctor on the one hand, as to the services he is to provide, and of the family practitioner committee on the other hand, as to the payments which it is required to make to the doctor, are all prescribed in the relevant legislation and it seems to me that the statutory terms are just as effective as they would be if they were contractual to confer upon the doctor an enforceable right in private law to receive the remuneration to which the terms entitle him.”-- According to Lord Lowry the court clearly had jurisdiction to entertain the doctor’s action because it was concerned with a private law right. This was a claim for an ascertained or ascertainable sum of money and the existence of any dispute as to entitlement meant that the doctor was alleging a breach of his private law rights through a failure by the committee to perform their public duty. “Although he seeks to enforce performance of a public law duty”, concluded Lord Lowry, “his private law rights dominate the proceedings”.-^ In other words the right to sue in debt is a private right at the level of the actio, but a public right at the level of ius. 157 4. The limits of the two-dimensional symmetry Admittedly this decision is likely to be much less of an obstacle to harmonisation than Lipkin Gorman since nc'>t all the civilian systems go quite as far as France in separating public and private rights. Nevertheless it does illustrate the two-dimensional structure of the codes. Factual disputes involve the relationship either between legal subject and legal object (rights in rem or, more abstractly, rights in re) or between legal subject and legal subject (rights inpersonarn)-, and the idea that there might be a further dimension involving a relationship between legal subject and legal remedy {actio) - or, indeed, between legal object {res) and legal remedy - has become lost in the rigid symmetry of axiomatic propositions. English law, in contrast, can construct at one and the same time various symmetries within a single factual situation, as both Lipkin Gorman and Roy illustrate. This, in turn, gives rise to a much richer reasoning structure since one can move from legal object {res) to legal action {actio) in order to construct an in re legal relation, while at the same time establishing, in another dimension so to speak, a quite separate legal relation between legal subject, or between the State, and another legal subject. Thus in Roy the judges were able, at one and the same time, to talk about a ius publicum relationship between plaintiff and defendant and a iusprivatumbond between plaintiff and debt action. Equally this third dimension allows one to comprehend the tracing action: the relationship between actio and res (enrichment in defendant’s At p. 630. At p. 654.
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