Legal History, Unjust Enrichment - Essay Example

LEGAL HISTORY For some, the law is a bulwark of stability and order - ever-unshakeable, created by assumptions and presumptions both tested and timeless. The study of legal history as an academic discipline, however, militates against this argument. For indeed, the law is infused with irresolvably opposed principles and ideals, and this legal indeterminacy, as it is called, compels the judge to make a choice that is not dictated by law. (Altman, 1986) Under the glare of Critical Legal Studies (CLS) scrutiny, once-sacrosanct legal precepts are being dismantled, stare decisis as a doctrine is being reexamined, and the infallibility of the courts as repository of truth and justice is being questioned. The law is no longer a fabric of clearly-defined spectrums, but is rather a patchwork quilt of various shades of gray. This framework is important in that it stimulates self-interrogation. It does away with the all-too-convenient givens of a legal system - that there is but one set of "correct" rules and that legal decisions are but logical outcomes of tested principles that are empirically-replicable. This is perhaps the best frame to undertake as we wade through the murky waters of legal history - navigating through Roman and anglo-saxon law; and moving towards and studying the various subtopics such as criminal law and justice, tort and restitution law, and gender law. Roman law is the legal system of ancient Rome, covering more than one thousand years from the twelve tables to the Corpus Juris Civilis. Animated in large part by the great thinkers of its time, this provides ready example that the law is more a patchwork quilt of the evolving mindsets of the day, than a steady and solid rock. For example, the great thinker Cicero maintains that there was no distinction between that which was morally good and what was useful to man. To quote from Cicero, "Virtue is a habit of the mind, consistent with nature and moderation and reason." [Rhetorical Invention (bk. II, sc. LIII)] Much of this has been influenced by Platonic philosophy which is hinged on moral virtue as practiced by just rulers. As such, the concept of government and duty has underlain much of ancient law and has aided the people of the time in charting their destiny. The interface between law and literature and the arts provides insights into how legal history was shaped during the past. Much of the law was influenced by the cultural milieu of the time. To quote from Green (1929): It is generally understood that the plays of Plautus, based on Greek models and avowedly translations of Greek comedies, have been so adapted for presentation to a Roman audience that they present a mixture of Greek and Roman elements. But the extent to which materials of each kind are used has been the subject of considerable discussion rather wide disagreement. Especially is this true as to the legal questions involved in the questions presented. The law of restitution Another field of law which would demonstrate how the law indeed is borne of subjective experiences and interpretations, rather than fixed principles is the law on restitution. The road towards accepting free acceptance as an iron-clad principle in the law of restitution may appear tantalizing to some, but as many legal scholars have pointed out, it is a road fraught with many dangers. Indeed, even the larger fulcrum on which it rests - the broad concept of unjust enrichment - has been the source of vociferous disagreement. So murky are the waters that judicial acceptance of the concept through the years has been less than overwhelming. The farthest it has reached, according to Hedley (1995) is this: a considerable number of judges now recognize that there is an important subject called restitution and that in general terms, it concerns the removal of benefits that would otherwise unjustly enrich the defendant. It is not difficult to imagine that jurisprudence surrounding the much more limited principle of free acceptance is even narrower. To aspire for universality or even, less ambitiously, coherence, would be a futile exercise. The only discernible trend is, as Hedley somewhat cynically puts it, "the willingness to make quite spectacular changes in the law when the judge's moral feelings are sufficiently outraged." "Unjust enrichment" as a principle of restitution has animated legal discourse in England for a long period of time, and as i in other jurisdictions, it has been and continues to be the subject of much argument and debate. The famous decision of Lipkin Gorman v. Karpnale Ltd. established the distinct role of unjust enrichment, and Woolwich v. I.R.C. acknowledged that the law of restitution has a structure and framework. Many argue that the principle is useful and has earned its place in common law; still other maintain that it is akin to a "white elephant" - awkward and shifting, filling up the room, but of very little real significance. Says Hedley (1995): In fact, the range of doctrines that "unjust enrichment" has been thought to explain has varied considerably across the years; and the rise of precise theory has resulted in a narrowing of the subject. Unsurprisingly, we see that the more precise the theory, the fewer the instances of liability. It is obvious that there is a recognition of free acceptance in English law as an unjust factor and that the law is not as given to fluctuations, grand invocations of justice with little to show by way of analysis. In a sense, there is some level of certainty in English law that is not apparent in, for example, Canadian law. What we see are "clearly-defined paths that permit only limited deviation." (Hedley) The danger, however, is to focus too much on the minor policy details without grasping the equal importance of drawing broad strokes and creating stable foundations. As eloquently stated by O'Connell (1956) - The analytical character of English jurisprudence has caused undue emphasis to be placed on accumulation of decisions and dicta, so that in many aspects the common law would seem to be an amalgam of factual data rather than an epitome of values. Much developments have taken place in the realm of restitution law, whether in common law jurisdictions or in civil law jurisdictions. The growth and evolution of free acceptance may be said to be particularly colorful. Viewed in equal parts with fascination and fear - fascination by legal scholars and theorists, fear by some jurists unwilling to 'navigate through the thicket' as it were, it makes a compelling study not only of a particular legal system and its biases, but also of the ever-changing conceptions of justice and equity through time. Women/ Gender Law Conaghan (1996) states: From a social perspective, feminists have argued that women suffer particular harms and injuries as women: their experience of pain and injury is indistinguishable, to a large extent, from the experience of men. This claim has at least two dimensions. On the one hand, pregnancy and childbirth, menstrual and/or ovulation pains are obvious examples of gender specific "harms". Men do not/cannot experience these traumas directly. On the other hand, the concept of gendered harm can also embrace those harms, which, although not exclusive to women in any biological sense, are risks which women are more likely to incur than men - the risk or rape, incest, sexual harassment, spousal abuse, or, more contentiously, the risk of harmful medical intervention. By and large, there is no dearth of legislation prohibiting discriminatory practices against women. However, in practice, jurisprudence has made it difficult for women to raise tort-related claims. Certainly, there are cases that are cut-and-dried; for instance, when it is patently obvious that there is discrimination on the basis of gender. However, in this day and age, it is less likely to find a case wherein the discrimination is so obvious that it unquestionably amounts to an illegal act. One would be hard put to find an employer who would dare violate the stringent regulations against workplace-related discrimination, instance. There is a greater likelihood that the discrimination would be insidious, perhaps having to do with a careless statement loosely made that betrays the speaker's biases and prejudice, clearly hurtful and demeaning, but difficult to pin down by using a specific law. The boundaries are ever-shifting; and internally, the judge will be trying not only to apply the law, but to subject the text or speech in question to her own subjective inquiry in order to determine the intent of the message-bearer and what the material was trying to say. (Streeter, 1995) If tort based on gender discrimination is difficult for women, it is even more so for homosexuals, a class of individuals waging a struggle for acceptance historically fraught with difficulty, oppression and pain. Certainly, significant inroads have been made with regard to protecting their rights. In other jurisdictions, the legal principle has been laid down that "protection from discrimination on the basis of gender" extends to "protection from discrimination on the basis of gender identity." This has led to the creation of the "gender non-conformance" legal theory -a theory that essentially states that "discrimination because one fails to act in the way expected of a man or woman is forbidden". In another case applying the same theory, a bank was held liable for refusing credit to a cross-dressing applicant, and the Court held that the laws protecting human rights and prohibiting discrimination prevail over private regulations and company policies. [Rosa v. Park W. Bank and Trust Co., 214 F. 3d 213 (1st Cir. 2000)]. However, it would seem that in English law, legal gymnastics is resorted to to deny the "duty of care" when the claimant is a homosexual alleging discrimination based on gender orientation. A good example of this is the "heterosexual comparator" argument. In the language of Robert Wintemute (1977): If a man complains that he has been treated differently because he has a male partner, the usual response is that there is no direct sex discrimination because a woman who has a female partner would be treated in the same way. This comparison avoids a finding of direct sex discrimination by changing not only the sex of the man, but also the sex of his partner. Yet for a valid sex discrimination analysis, the comparison must change only the sex of the complaining individual, and must hold all other circumstances constant. Otherwise, a change in some other circumstance (such as the complaining individual's qualifications, their choice of job or the sex of their partner) could hide the sex discrimination. Two cases are important to note in relation to this, the decisions in which are troublesome and appear to reveal the unwillingness of the legal system to rethink its traditional paradigms, particularly in regard the issue of gender. The case of Lisa Grant -v- South-West Trains Ltd [Case C-249/96], decided by the European Court of Justice, makes a good study. Lisa Grant was employed by SWT whose employees were entitled to travel concessions. "Privilege tickets" were granted for one legal spouse of an employee and also to "one common law opposite sex spouse (emphasis provided)... subject to a statutory declaration being made that a meaningful relationship has existed for a period of two years or more..." That travel concession was an aspect of pay within the meaning of Article 119 of the Treaty. The important question raised in this case was whether that provision conferring the benefit on an employee who lived with a person of the opposite sex constituted discrimination based directly on the sex of the worker. The court held in the negative. By the simple expedient of pointing out that a man living in with another man would be refused too, the court justified the act of refusing travel privileges to a woman living in with another woman. In the same year as the Lisa Grant case is the case of P -v- S & Cornwall County Council [1996] ECR 1-2143, where the Court ruled in the same tenor. It found that the provisions of the directive prohibiting discrimination between men and women were simply the expression of the principle of equality which argued in favor of applying it to discrimination based on the workers' gender assignment. Hence, while a transsexual may rightfully invoke it, having switched gender assignment, a homosexual still biologically male, may not. To quote the Court: "...the scope of that article (Article 119) ...is to be determined only by having regard to its wording and purpose, its place in the scheme of the Treaty and its legal context. It follows from the considerations set out above that Community Law as it stands at present does not cover discrimination based on sexual orientation". Comes now the case of Smith v Gardner Merchant Ltd [1998] EWCA Civ 1207 (14 July 1998). The appellant, a homosexual man was hired as a barman at a Theatre, where a co-worker constantly taunted him and made personal remarks about his being gay, going to the extent of saying that gay people carry "all sorts of diseases and should all be placed in one island." The co-worker fabricated stories about the conduct of appellant to management, and as it was her version that management believed, appellant was found to be guilty of gross misconduct. In the decision, this categorical statement could be found: The Industrial Tribunal and the Appeal Tribunal were, therefore, correct to conclude that there is a difference between discrimination on the ground of sex and discrimination on the ground of sexual orientation and that a person's sexual orientation is not an aspect of his or her sex. What is obvious in the line of cases cited is that there is a resistance to the idea of homosexuality and accommodating it as a concept in the discussion of gender discourse as it impacts on law and breach of duty. This demonstrates a legal history that seeks to preserve antiquated paradigms and belief systems instead of a culture of diversity and pluralism. In conclusion, it may be said after exploring two fields of law, that the law is a tapestry of many shades of gray. It is not less a solid structure of rules than an amalgam of lessons, reflections and paradigms unique to a given era and specific to a particular people. The imperative that faces courts in these times, therefore, is to strike a balance between fulfilling the moral duty of the judiciary to "give everyone his due" and to come up with a learned and scholarly decision that looks back to the learnings of the past, but with a view towards providing lessons for the future. Works Cited Altman, A. (1986) Legal Realism, Critical Legal Studies and Dworkin. Philosophy and Public Affairs, vol. 15, no. 2. 217-244. Green, W. (1929) Greek and Roman Law in the Trinummus of Plautus. Classical Philology, Vol. 24, No. 2, pp. 183-192 Hedley, S. (1995) Unjust Enrichment. Cambridge Law Journal. Vol. 54, No. 3. At 578 O'Connell, D.P. "Unjust Enrichment." American Journal of Comparative Law. Vol. 5, No. 1. (Winter, 1956). Pp. 10. Wintemute, R. "Recognising New Kinds of Direct Sex Discrimination: Transsexualism, Sexual Orientation and Dress Codes" [1977] 60 Modern Law Review 334. Streeter, T.. Some Thoughts on Free Speech, Language and the Rule of Law. 1995. (from Robert Jensen and David S. Allen (eds.), Freeing the First Amendment: Critical Perspectives on Freedom of Expression, New York University Press, 1995, pp. 31-53.) Read More