Tuesday, August 05, 2008

COMMENT: Making commercial law sound enlightening ...

It’s difficult to make a lecture on legal history sound interesting and entertaining. It’s even more difficult to imagine a judge successfully doing this.

His Honour Justice Spigelman, Chief Justice of the NSW Supreme Court, managed to comfortably achieve this requirement. His presentation to the Enlightenment Forum organised by the Centre for Independent Studies was a master-stroke of clarity, erudition and good humour.

His Honour focused on the enlightenment value that seeks to implement a culture of improvement through the application of reason. He said that no individual or society should be deemed sentenced by the Creator to remain at the same standard.

Spigelman J distinguished between reform and improvement. He illustrated his discussion by examining the life of one of England’s foremost jurists, Lord Mansfield.

English enlightenment was a more pragmatic affair than its counterparts in other parts of Europe. It focussed more on what works than on how the world should be. It was realistic, but at times too insular.

Lord Mansfield was an apparently rare entity - a Scottish Francophone. He didn’t share the insularity of the common lawyers of his day, especially in commercial matters. In his 30 year career, he developed English common law (especially in the area of property, insurance, commercial instruments and maritime law) in a manner that made English law consistent with developments in other parts of the world. He insisted that there must be freedom of contract and that contracts should be based on good faith.

Mansfield was in many ways a man ahead of his time. Many of the issues he addressed in his judgments – issues of delays and mounting costs to litigants - are still relevant today. Mansfield also was happy to refer commercial disputes to independent arbitrators. He was an interventionist judge, happy to actively participate in hearings as opposed to just leaving matters to the parties and/or their legal counsel. Indeed, many aspects of modern judicial practice (such as case management) can be traced back to Mansfield’s enlightened reforms. In this sense, Mansfield ensured that the values of enlightenment are entrenched in contemporary judicial practice.

Spigelman J cited an American judge Posner who once said that the law is the only discipline in which innovation is regarded as a pejorative concept. Lawyers prefer to speak of improvement as opposed to innovation. Yet Mansfield’s role in developing English commercial law represented both innovation and improvement.

The last time I read about Lord Mansfield was when I studied an undergraduate course in commercial law under Professor Mark Cooray. At the time, I found the entire development of the Sale of Goods Act rather boring. Spigelman J’s lecture might just revive an interest in the topic again.

Words © 2008 Irfan Yusuf

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