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7 J. Juris 405 (2010)
Monologism and Dialogism in Private Law

handle is hein.journals/jnljur7 and id is 145 raw text is: THE JOURNAL JURISPRUDENCE MONOLOGISM AND DIALOGISM IN PRIVATE LAW Patrick O'Callaghan* 1. Introduction Since its publication in 1984, law students throughout the English-speaking world have become thoroughly familiar with Hutchinson and Morgan's 'The Canengusian Connection', the subject of this special issue of The Journal jurisprudence. The authors depict a hypothetical personal injury case featuring five fictitious judges, each of whom represents a major school of thought in legal theory, and, to this extent, the essay might be regarded as tort's version of Lon Fuller's 'Case of the Speluncean Explorers.'2 In the vein of Fuller, Hutchinson and Morgan skilfully highlight the tensions between the various schools of thought, and, in so doing, capture the 'knock-about' character of much common law argument. But the authors sound a note in 'The Canengusian Connection' that may pain some lawyers trained in the 'grand traditions' of continental Europe, for it reinforces the standard view that the common law is nothing more than a chaotic mishmash of peculiar rules, procedures and accidents of history, lacking a sound systematic structure or core. Sceptical civilians single out the highest common law courts, in particular, on the grounds that their 'judicial monologues' sometimes give rise to vague and indeterminate decisions. The charge is that multiple voices breed incoherence; a court should speak with one voice (la cour decide, elle ne discute pas!, in the manner of the European Court of Justice or the French Cour de Cassation.' On this account, the province of a court is not to provide a forum for individual orations but rather to deliver the ultimate word, or, in the words of Leviathan, to arrive at a 'resolute and final sentence'.' While the members of a court might not unanimously agree on a particular course of action, they give the impression * Lecturer, Newcastle Law School. I would like to thank John Alder and Richard Mullender for their comments. 1 A.C. Hutchinson and D. Morgan, 'The Canengusian Connection: The Kaleidoscope of Tort Theory' (1984) 22 Osgoode HallLaw Review 69. 2 L. Fuller, 'Case of the Speluncean Explorers' (1949) 62 Harvard Law Review 616. In fact, the Code Civil expressly prohibits judicial law-making. Article 5 Code Civil states: 'll est defendu aux juges de prononcer par voie de disposition generale et reglementaire sur les causes qui leur sont sournises.' ('Judges are prohibited from declaring general and regulatory principles in the cases submitted to them'). On French formalism, see further V. Grosswald Curran, 'Formalism and Anti-Formalism in French and German Judicial Methodology' in C. Joerges and N.S. Ghaleigh (eds) Darker Legacies of Law in Europe (Oxford: Hart, 2003). 4 T. Hobbes, Leviathan (J.C.A Gaskin, ed., Oxford: Oxford University Press, 1996), p 42. (2010) J. JURIS 405

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