Geoffrey Samuef 166 institutions and concepts.Yet in refusing to see the normative force of law in the dogmatic normativismof symbolic language, and in the power of ars hermeneutica, they can construct the source of law beyond that of language, foreing indeed the legislature to function often at the level of images. In place of the concise proposition to be found in article 1384,^' the English lawyer has statutes devoted to animals, dwelling houses, factory equipment, aeroplanes, trains, pickets, water, gas, waste, highways and so on.^- These categories of things are more fundamental to English law than almost any category which relates exclusively to concepts functioning as part of an abstract and hierarchical symbolic structure of relations. Of course there are exceptions, or at least apparent exceptions; and thus one might point to the trust, to contract and to the general duty of care. Yet the cases themselves tell a different story. There is in truth no general duty of care, simply a list of specific duties involving specific people (accountants, solicitors employers, manufacturers, road users) and specific things (products, references, wills, trees, walls and the like); and even the apparent certainty of contract rules may not stand the test of the specific relationship between, say, local authority and business entrepreneur.^^ The Continental jurist is, of course, well aware of this common law empiricismand the epistemologist might simply locate this difference of mentality in a décalage between the stages of scientific development.^"* Thus English law, like the Roman law of the mos Italiens, could be seen as remaining trapped in the descriptive and inductive, while the codes are the result of the deductive and the axiomatic.Yet even if this epistemological thesis is true it does not necessarily followthat harmonisation will be a matter of harmonising stages of scientific development; for not only is there a crisis with respect to axiomatics and law, but the whole history of legal science, such as it is, has been largely written on the assumption that knowledge of lawconsists knowledge of propositions (regnlae iuris) and this assumption is, as a result of Artificial Intelligence research, in crisis as well. The obstacle that stands in the way of a newjus commune has, then, both a historical and an epistemological dimension. The historical dimension that acts as an obstacle is the absence of any alternative scientific historv to the one founded on the rule model. The history of caselaw, of facts and the arsjudicandi, remains to be written. This historical dimension is, of course, partly responsible for the epistemological obstacle to harmonisaSamuel, Foundations, op.cit., pp. 191-207. On est responsable non seulement du dommage que Von causepar son proprefait, mais encore de celui qui est causepar le fait despersonnes dont on doit repondre, ou des choses que Von a sous sa garde. See generally F. Rose (ed.). Statutes on Contract, Tort & Restitution (Blackstone, 8th. ed.. 1997). See generally G. Samuel, Sourcebook on Obligations and Legal Remedies (Cavendish, 1995). Samuel, Foundations, op. cit., pp. 83-85. Ibid, p. 84.
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