Or to bring it back into jurisprudence, we need a comprehensive, rich and fair list of names for legal issues – so that people can use them to name, accuse and claim – to have access to justice. 26. Historical criteria for legal classification have been more popular in the past than they are today. See, for example, William A. Keener, A Treatise on the Law of Quasi-Contracts (1893); John Norton Pomeroy, Jurisprudence on Equity (1881). The Restatement of Restitution first divided restitution into legal and equitable settlements. See Restatement of Restitution pts. I & II (1937). In the new draft reformulation (third) of restitution and unjust enrichment, the distinction between law and justice is abolished. See Restatement (third) of Restitution and Unjust enrichment (draft report 2000; preliminary draft No.
1, 2001; Preliminary draft No. 2, 2002; Preliminary draft No. 3, 2004; Preliminary draft No. 4, 2005). 65. Nor is the explanatory memorandum a form of moral principle incorporated into law by authoritative sources. Positivists disagree on whether moral principles can become legally binding through incorporation. See, for example, Raz, Morality of Freedom, op.
cit. Cit. note 12, pp. 42-51 (Defence of exclusive legal positivism); Coleman, Jules L., Incorporationism, Conventionalism, and the Practical Difference Thesis, 4 Legal Theory381, 383–385 (1998) (defending inclusive legal positivism)Google Scholar; Shapiro, Scott J., On Hart`s Way Out, 4 Legal Theory469 (1998)Google Scholar. Applications of taxonomy in business include: These questions go to the 3 categories that Bowker + Star highlights as a constant push-and-pull of taxonomy creators: control, comparability and visibility. A good taxonomy makes all 3 of them, although they can never do them all completely: 28. See footnotes 5 to 7 and accompanying text above. See also Jaffey, Classification, op. cit. cit., note 9, pp. 1017-1018 (characterizes Birks` taxonomy as formal).
Another example of formal classification comes from Nicholas McBride, who argues that classification “should tell us everything there is to know about our obligations in the most economical and accurate way.” McBride, op. cit. cit., note 7, p. 72. This requires a list in which no listed obligation is “one instance of another obligation on the list” and two listed obligations are “two instances of another obligation not on the list”. Id., pp. 74-78. See also Stephen A. Smith, Taking Law Serious, 50 U. Toronto L.J. 241, 254–255 (2000) (defense of Birks` taxonomic schema, which Smith describes as a “moderate” recognition of the law`s own organizational “self-understanding”). It could also be called the danger of selective invisibility: does this legal taxonomy hide important categories of problems and make it less likely that people have solved those problems or that there is a government to solve them? 7.
“The criterion for the validity of a taxonomy is precisely whether an object within its jurisdiction may appear in more than one category established at the same level of the general public. –.–. It is no more possible that the chosen causal event is both an unjust enrichment and a crime than it is that an animal is both an insect and a mammal. Birks, Unjust Enrichment and Wrongful Enrichment, op. cit. Cit. Note 2, pp. 1780-1781. See also Nicholas J. McBride, The Classification of Obligations and Legal Education, in The Classification of Obligations 71 (Peter Birks, ed. 1997), (with a similar approach to legal taxonomy). 92.
See Emily Sherwin, Reparations and Unjust Enrichment, 84 B.U. L. Rev. 1443, 1459-1460. In the event of misconduct, a reduction in the defendant`s welfare may be justified by retaliation, but not all claims of unjust enrichment involve fault and, in all cases, legal responses to unjust enrichment are generally not measured by fault, as must be retaliation. For a discussion of the moral value of retaliation, see, for example, Robert Nozick, Philosophical Explanations 374-380 (1981) (states that retaliation is necessary to associate the wrongdoer with moral values); Jean Hampton, The Retributive Idea, in Forgiveness and Mercy 111, 122-147 (Jeffrie G. Murphy & Jean Hampton eds., 1988) (explains retaliation as a means of confirming the value of the victim); Michael S. Moore, The Moral Worth of Retribution, in Responsibility, Character, and the Emotions 179 (Ferdinand Schoeman ed., 1987); Herbert Morris, Persons and Punishment, 52 Monist 475, 482–486 (1968) (explains retaliation as a balancing of moral scores). According to Dworkin`s definition, legal principles must explain some of the existing rules and decisions; In addition, however, faulty rules and precedents can be set aside in order to achieve the morally best principle. See Dworkin, Law`s Empire, op. cit. cit., note 18, pp.
230-231, 239-250, 255; Dworkin, Taking Rights Serious, op. cit. cit., note 18, pp. 118-123. To the extent that legal principles must be the best moral principles they can be, in accordance with the fitness requirement, it can be assumed that all defective materials must be discarded as soon as the threshold is exceeded. See Alexander, Larry & Kress, Kenneth, Against Legal Principles, 82 Iowa. L. Rev.739, 756–757 (1997)Google Scholar; Kenneth J. Kress, Legal Reasoning and Coherence Theories: Dworkin`s Rights Thesis, Retroactivity, and the Linear Order of Decisions, 72 Cal. L.
Rev. 369, 380–381 (1984) Assuming that at some point a number of previous legal rules and decisions will be wrong, legal principles allow judges to improve the raw material of existing law. However, in an imperfect world, legal principles cannot be ideal principles because they must meet the minimum requirement of conformity with existing rules and decisions. 58. Perhaps this effect could be avoided by limiting access to the taxonomy of ideal legal bases to those who draft legislation and by denying access to those who are supposed to respect and enforce the legislation. But the prospect of an esoteric legal taxonomy, hidden from most legal actors, raises a host of practical and moral problems. See Alexander & Sherwin, Rules of Rules, supra note 12, pp. 86-91; Larry Alexander & Emily Sherwin, The Deceptive Nature of Rules, 142 and 1191, 1211-1222 (1994). Last but not least, one of these practical difficulties is that, in a system that accepts the doctrine of precedent, arbitrators are legislators.
85. A particularly broad interpretation of this principle is that unjust enrichment can and should play the role formerly played by equity, allowing courts to make exceptions to otherwise applicable legislation in all areas of law. See Peter Linzer, Rough Justice: A Theory of Restitution and Reliance, Contracts and Torts 2001 Wis. L. Rev. 695, 700–702, 773–775 (2001); Barry Nicholas, Unjust Enrichment in Civil Law and Louisiana Law, 36 Tul. 605, 607-610 (1962) (suggesting that unjust enrichment serves as a remedy for legal norms and to fill loopholes when rules fail).