Geoffrey Samuef 158 patrimony) is proprietary in that it is founded upon a relationship in a thing or an abstract conception of it; the relationship between plaintiff and defendant is personal as between themselves. Not all judges see this of course and thus there is now a tendency to deny that tracing is an actio in rem. Tracing is a ‘process’ rather than a remedy or a substantive right.Equally the civilian jurist may not approve of Lord Goff s legal science. Yet froma constructivist reasoning and epistemological point of view it is perfectly rational: Lord Goff could move fromthe notion of a wrong (law of obligations) to a notion of a right (law of property) which, in turn, allowed himto escape from the logic of the implied contract theory of unjust enrichment debt claims. In itself the difference of symmetries between the common law and civil law models may seem relatively minor. Indeed the possibility of a model of legal relations between persona, res and actio may appear as a hopeful epistemological structure in that it can be used to make sense of both the codes and the common law.-^ Yet the construction of solutions fromwithin the facts themselves through the manipulation of the three institutions {persona, res and actio) is a process that turns out to be rather different from the application of a symmetrical structure fixed relatively rigidly to institutions that formpart of a symbolic, rather than non-symbolic, epistemological language. The range of combinational possibilities can turn out to be much greater when one is not constrained by a symbolic language itself constrained by a systemwhose fixed symmetry between elements -persona and res (legal subject and legal object) - have themselves have been reduced to dogmatic linguistic propositions. There is little ‘science’ in the common law, from a dogmatic point of view, in the sense that certain possibilities are, as a matter of rationality, closed off from consideration. If the law of contract is unsuitable, the English lawyer can always turn to tort; if property rules prove too uncompromising, one can always try equity. If rights prove too rigid, there is the lawof remedies.The endless series of combinational possibilities between persons, things and actions is what makes the grasping of English law as a set of scientifically rationalised norms almost impossible. It is a seamless web that is deliberately elusive since the moment when one tries to construct a scientific image, say around promise and consideration as the basis of a vinculumluris, that image changes as soon as one views the object from the position of an equitable remedy. Mrs Beswick gave no consideration for the nephew’s promise to pay her a weekly annuity after the death of her husband; yet the nephew’s image of his common law rights and duties overlooked the institutional possibilities surrounding the -■* Boscaii'cn v Baju-a [1995] 4 All ER 769, 776 per Millctt LJ. See generally Samuel, Foundations, op.cit., pp. 155-294; and see alsoJ. Bell, English Law and Erench Law- Not So Different? [1995] Current Legal Problems 63; M. Lasser, Judicial (Self-) Fortraits: Judicial Discourse in the French Legal System (1995) 104 Yale LateJournal 1325. See e.g.. Miller vJackson [1977] QB 966.
RkJQdWJsaXNoZXIy MjYyNDk=