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PAPER NO.

56/2014
SEPTEMBER 2014

Private Law at the Crossroads: Is There a Right


Way Forward?
Nicholas McBride

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Private Law at the Crossroads:


Is There a Right Way Forward?

NICHOLAS J McBRIDE*

When you come to a crossroads, you can turn left, go straight on, or turn right. 1 So it is with
the law. When the courts reach a crossroads in developing the law which they will always
do when they have to decide a case where the existing law does not determine the outcome
there are three ways they can go. They can turn left and take what I will call the way of
pragmatism that is, deciding the case in the way that (the court hopes) will make things go
best in the future.2 They can choose to proceed straight on along what I will call the way of
integrity. They will do this if they decide the case in a way that is in some way continuous
with the way the existing law has developed so far. Or they can turn right and go along what I
will call the way of simplicity in other words, deciding the case in a way that will promote a
single, limited value or goal.3
This paper will recommend that when we come to a crossroads in developing the law
we should follow the way of pragmatism. Section I of this paper will explain the foundations
on which the pragmatic way of judging crossroads cases is based. Building on these
foundation, Section II will set out seven principles that a judge who is pursuing the way of
pragmatism should bear in mind in deciding a crossroads case. Section III will apply these
principles to show how a pragmatist would decide four cases where different common law
jurisdictions have come up with different answers as to how those cases will be decided.
Section IV will consider seven arguments that could be made against adopting a pragmatic
approach to developing the law, and will establish that either those arguments have no
validity or can be taken into account in applying the pragmatic approach. Section V will
conclude that there is a right way forward in deciding crossroads cases: the way of
pragmatism.
It is appropriate that I should address these issues in a paper written for a conference in
Hong Kong, as Hong Kong itself lies at a crossroads between the worlds major common law
jurisdictions. Located as it is 6,000 miles from both London and New Zealand, 4,500 miles
from Sydney, Melbourne and Brisbane, and 8,000 miles from New York and Toronto, Hong
Kong is well placed to draw on the best that its fellow common law jurisdictions have to offer
in determining how to develop its own law. But where those jurisdictions diverge in the
answers they offer to a particular legal issue, it is important for a jurisdiction like Hong Kong
that it have some basis for determining which jurisdictions answer it should prefer to adopt
*
Fellow, Pembroke College, Cambridge. My thanks to the members of the Cambridge Centre for Private Law,
Rachel Leow, Irit Samet, John Murphy, and Fred Wilmot-Smith for comments on earlier drafts of this paper.
1
You can also go back where you came from, but this is not an option that I will be considering in this paper.
2
This definition is consistent with Richard Posners definition of pragmatic adjudication under which
pragmatist judges always try to do the best can do for the present and future, unchecked by any felt duty to
secure consistency in principle with what other officials have done in the past: Posner, The Problematics of
Moral and Legal Theory (Harvard University Press, 1999), 241. Like Posner, Id like to make clear that my
references to pragmatism in this paper have nothing to do with the philosophical pragmatism peddled by
thinkers like Richard Rorty and Stanley Fish, and denounced as a dogs dinner by Ronald Dworkin: see
Dworkin, Pragmatism, right answers, and true banality in Brint and Weaver (eds), Pragmatism in Law and
Society (Westview Press, 1991), at 360.
3
Of course, one could collapse the way of pragmatism into the way of simplicity by arguing that making things
go best is a single goal, but there seems little point in doing that. To avoid the collapse, we can stipulate that a
judge pursues the way of simplicity if he/she seeks to promote a single goal that falls short of making things go
best. The reference in the text to a limited value or goal is intended to convey that point.

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or whether it should come up with an entirely different answer of its own. I hope this paper
will provide common law jurisdictions like Hong Kong with a solid basis for deciding these
questions.

I. PRAGMATIC FOUNDATIONS

The ways of integrity and simplicity in developing the law are well-understood; the way of
pragmatism much less so.
The way of integrity had its most eloquent advocate in Ronald Dworkin, who argued
that in deciding any case, a judge should seek to give effect to the principles that cast the
existing state of the law in its most appealing light.4 Many private law theorists are adherents
of the way of simplicity: they argue that in deciding private law cases, judges should seek to
promote one limited goal in deciding private law cases, such as ensuring everyones
independence,5 or providing a peaceful means of allowing someone to obtain recourse from
someone who has seriously wronged them,6 or promoting wealth-maximisation.7 Indeed,
such theorists would argue that the way of simplicity and the way of integrity are one and the
same in that the best interpretation of the existing state of private law indicates that private
law is already organised around promoting one limited goal: so anyone who seeks to pursue
the way of integrity in deciding a crossroads case will seek to decide the case in a way that
promotes that one limited goal.
The way of pragmatism is left completely in the cold by this cosy consensus in favour
of integrity and simplicity. In order to begin the process of rehabilitating pragmatism as an
ideal for judicial decision-making, I want in this section to set out the foundations on which
such a pragmatic approach to deciding cases is based on. Those foundations can be summed
up in the following five propositions.

(1) Things go well for an individual when they are moving towards achieving the kind of state
where they can be said to be flourishing as a human being. Most people would accept that
this is a plausible definition of when things can be said to be going well for an individual.
Things are going well for Addict when she checks into a rehab clinic to try to kick her
addiction to drink and drugs. And things are going badly for Curious when he picks up a
crack pipe for the first time and inhales deeply. Addict is moving forwards to a state where
we can say that she is flourishing as a human being; Curious is moving away from such a
state.

(2) Things go best for an individual when they flourish as a human being. While most people
would accept proposition (1) as plausible, they may be repelled by the selfish individualism
that seems to lie at the core of proposition (2). To say that things go best for an individual
when they flourish as a human being, regardless of what is happening to anyone around them,
seems to support an Im all right, Jack! mentality where an individuals only concern is

4
See, in particular, Dworkin, Laws Empire (Harvard University Press, 1986), chapters 6-8. It should be noted
that I am using the term integrity in a wider way than Dworkin, to refer to any approach to deciding crossroads
cases that seeks to decide those cases in a way that is continuous with the existing law. Dworkins theory of law
provides us with one such approach, but it is not the only one.
5
Ripstein, Force and Freedom (Harvard University Press, 2009).
6
Zipursky, Rights, wrongs and recourse in the law of torts (1998) 51 Vanderbilt LR 1; Goldberg & Zipursky,
Torts as wrongs (2010) 88 Texas LR 917; Goldberg &. Zipursky, Civil recourse revisited (2011) 39 Florida
State ULR 341.
7
Posner, Economic Analysis of Law, 8th ed (Aspen Publishing, 2014), Part II; Landes & Posner, The Economic
Structure of Tort Law (Harvard University Press, 1987).

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what is happening to them. However, this is far from the case. For one thing, someone cannot
hope to claim that they are flourishing as a human being if they are indifferent to other
peoples flourishing.8 For another, if Romeo cares about Juliet then Romeos flourishing will
be dependent on Juliets flourishing.9 In Romeos eyes, his fate will be intertwined with
Juliets: they will stand or fall together. So things go best for an individual when, among
other things, those they care about flourish as human beings. Point (4) indicates a further
respect in which someone who is concerned for their own flourishing must also be concerned
about the flourishing of other people.

(3) No society can ensure that things go best for the members of that society: the most it can
do is do what it can to ensure that things go well for the members of that society. Every
parent would acknowledge that they cannot guarantee that their children will grow up to be
flourishing human beings. The fact and importance of free will, and the inevitable
vicissitudes of life make it impossible for them to do this. The best they can do is to do what
they can to ensure that things go well for their children, by providing them with the
wherewithal that they will need to flourish as human beings, and some direction and
encouragement to help them move towards a state where they can be said to be flourishing as
human beings. What applies to families applies a fortiori to the societies we live in. All a
society can do, to help things go best for us, is support the existence of institutions and
activities that are crucial to human flourishing as well as more directly encouraging its
members to move towards a state of human flourishing rather than away from such a state.
Such a society can fairly claim that it is doing what it can to ensure that things go well for the
members of that society.

(4) The flourishing of an individual is endangered when he or she lives in a society that does
not do what it can to ensure that things go well for every member of that society. Proposition
(4) asserts that the flourishing of an individual, S, is put in danger if she lives in a society U
that does not do what it can to ensure that things go well for every member of that society
and this is so even if S is one of the lucky ones whose flourishing U seeks to encourage. Lets
call a society like U an uncaring society.
Examples of uncaring societies are the society described in Ursula Le Guins short
story The Ones Who Walk Away From Omelas,10 where the happiness and welfare of the
people who live in the city of Omelas is dependent on one child being kept in filth and
squalor and darkness; or the society described in Theodore Dalrymples Life at the Bottom,11
which contains an underclass that lives in a state of moral, material, and intellectual
degradation, while the societys elite classes do nothing to help the underclass escape their
poverty (in all its dimensions). The reason why the flourishing of S is endangered if she lives
in an uncaring society is that simply by virtue of living in that society she is constantly
confronted with the need to choose between protesting against, or acquiescing in, the way
that society neglects the interests of certain of its members. Whichever choice S makes, her
flourishing may be endangered. If S protests, that protest might carry with it certain costs that
will endanger her flourishing. If S acquiesces, her acquiescence may turn into an indifference

8
See McBride, Tort law and human flourishing in Neyers, Pitel and Chamberlain (eds), Tort Law:
Challenging Orthodoxy (Hart Publishing, 2013), 49-50.
9
ibid, 45-46.
10
First published in Silverberg (ed), New Dimensions 3 (Nelson Doubleday, 1973). It is now freely available on
the Internet.
11
Dalrymple, Life at the Bottom (Ivan R Dee, 2001).

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to other peoples flourishing that will mean she cannot claim to be flourishing as a human
being.12
So things are only likely to go well for us if we live in a society that not only seeks to
foster our flourishing but also that of everyone who lives in that society. Lets call such a
society a caring society. So things are only likely to go well for any of us if we live in a
caring society, a society that seeks to help ensure that things go well for all of us.

(5) The best kind of society to live in is a caring society. Proposition (5) follows from the
previous four propositions. Things are likely to go well for us if we live in a caring society,
and we cannot hope for more from the society in which we live than that its rules and
institutions are arranged in a way that means that things are likely to go well for us. The rest
living our lives in such a way that things will go best for us is up to us.

II. SEVEN PRAGMATIC PRINCIPLES

We are getting closer to understanding how a pragmatic judge who seeks to decide a
crossroads case in a way that will make things go best will operate. Lets call this
pragmatic judge, Alfred.13 If the best kind of society to live in is a caring society, then things
will go as best as Alfred can make things go if Alfred decides crossroads cases in a way that
will help ensure that the society for which he acts as a judge is a caring society.
A caring societys legal system and all its other institutions will be organised
around the following seven principles:

(1) Everyones flourishing is important. This is the defining mark of a caring society: it is
concerned to foster the flourishing of all its members, with no exceptions. As we have just
seen, none of us are likely to do well if we live in any other kind of society.

(2) Stability is important. The Chinese curse May you live in interesting times gets its force
from the fact that human flourishing becomes difficult, if not impossible, in an unstable
society where people cannot count on things being the same tomorrow as they are today.
People become mean, hedonistic, materialistic and short-sighted in an unstable society.14
None of these qualities are compatible with human flourishing. So a caring society will be
one that places a high premium on stability.

(3) People are to be encouraged not to undermine other peoples flourishing. Intentionally
undermining anothers flourishing is the essence of immoral behaviour. 15 So a caring society
will encourage people to act morally not only for the sake of the person whose flourishing
might be undermined by someone else, but also for the sake of the person who might
otherwise be tempted to undermine anothers flourishing. This is because someone who
intentionally undermines anothers flourishing either (a) hates that other; or (b) is indifferent
to that others flourishing. Either state is incompatible with human flourishing.

12
See above, n 8.
13
Alfred is an Old Norse name meaning wisdom and, by happy coincidence, is the first name of perhaps the
most pragmatic judge to have sat in an English court.
14
Cf. Thucydides description of the effects of plague on the inhabitants of Athens in 430 BC in his History of
the Peloponnesian War, II.53.
15
Finnis, Natural Law and Natural Rights, 2nd ed (Oxford University Press, 2011), 451.
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(4) Activities and practices that are essential to peoples flourishing are to be preserved and
encouraged. No one can flourish in a vacuum. If people are to flourish, they have to exist
within what Robert George calls a moral ecology16 that sustains the activities and practices
within which people can develop the virtues that are essential to human flourishing
generosity, gratitude, courage, loyalty, and reasonableness, among others. An example of one
such practice is marriage. Most modern accounts of the good of marriage emphasise the
opportunity it provides for two people to provide lasting support to each other, or to express
the special bond of love that they feel for each other.17 However, in a caring society, marriage
will take on a further significance, as a moral gymnasium for the formation and deepening of
the virtues that are essential to human flourishing. Given its significance in helping people
flourish as human beings, a caring society will seek to protect the institutions through which
marriages are entered into, and encourage people to undertake, and take seriously, the
demands that marriage makes of married couples.

(5) People are to be encouraged not to undermine their own flourishing. A caring society will
encourage people not to do things that are likely to make things go badly for them. To the
example given earlier of smoking crack, we could add squandering ones possessions,
truanting from school, needlessly endangering ones life or disabling oneself, refusing to find
some useful employment, engaging in under-age sex, and becoming addicted to anything.

(6) People are to be encouraged to come to the aid of other peoples flourishing. A caring
society will honour people like parents and teachers for the role they play in helping those
under their care to flourish as human beings, and will set up social and emergency services
that are designed to serve the public good by helping everyone flourish as human beings.

(7) In giving effect to the above principles, do not do more harm than good. In a caring
society, harm and good are defined by reference to the effect that they have on human
flourishing a given rule or policy or institution does more harm than good if its existence is
likely to have more of a negative than positive impact on the flourishing of members of the
caring society. In determining whether this is the case, a caring society will employ the
following general rule: If doing x would give effect to one of the principles (1) (6) on the
above list but also run counter to a principle higher up on the list, then doing x will normally
do more harm than good. For example, imprisoning people when they engage in activities
that undermine their own flourishing will give effect to principle (5), but in doing so will run
counter to principle (3) as imprisoning people will tend to retard their flourishing as human
beings.18 So imprisoning people for undermining their own flourishing will tend to do more
harm than good: carrots rather than sticks need to be found in order to encourage people not
to undermine their own flourishing.

Alfred will seek to decide crossroads cases in a way that gives effect to the above seven
principles. If he does this then he will make things go the best that he can make things go.
Deciding cases in accordance with the above principles will help ensure that the society for
which he acts as a judge will be a caring society, where things are likely to go well for
everyone who lives in that society.

16
George, Making Men Moral (Oxford University Press, 1993), 37, 43.
17
Cf. Koppelman, The Gay Rights Question in Contemporary American Law (University of Chicago Press,
2002), chapter 4.
18
Raz, The Morality of Freedom (Oxford University Press, 1986), 418-19.
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III. APPLICATIONS

In light of the above, I now want to explore how our pragmatic judge Alfred would decide
four cases. These are not necessarily cases where the law in a particular common law
jurisdiction is unsettled or unclear. But they are cases where different common law
jurisdictions adopt different approaches to their resolution. So seeing how Alfred would
decide these cases not only helps us to understand in more detail how the pragmatic approach
to deciding cases works in practice; it also shows a common law jurisdiction (such as Hong
Kong) that has yet to decide in which direction it will jump in these kinds of cases what a
pragmatic approach to developing the law would suggest it should do in these cases.

A. Mistaken transfers

In our first case, P transfers money to D because she has made a mistake of some kind: had
she not been mistaken, she would not have transferred the money to D.
In England and the United States, the question of whether P will be entitled to sue D for
the value of her money will depend on whether D was unjustly enriched as a result of
receiving the money paid to her by P. Normally, the mere fact that P made a mistake in
paying that money to D will be sufficient to establish that D has been unjustly enriched in
both England and the United States.19 In Australia, the result may not be any different as to
when P will be entitled to sue D for the value of her money,20 but in Roxborough v Rothmans
of Pall Mall Australia Ltd21 the High Court of Australia seemed to suggest that whether D
would be held liable to P under Australian law in our hypothetical would depend, not on
whether he had been unjustly enriched as a result of receiving the money paid to him by P,
but on whether it would be unconscionable for D to retain the enrichment that he obtained
as a result of receiving the money paid to him by P.22
The reasoning in Roxborough provoked a fierce reaction from English academics. Peter
Birks thought that basing Ds liability to P on unconscionability was incoherent: if it was
unconscionable for D to retain the enrichment that must be because he had a legal duty to
give it up to P, and that legal duty could only be explained as arising in response to Ds
unjust enrichment at Ps expense.23 So unconscionability was an unnecessary fifth wheel
on the coach that would take us to a correct understanding of why D was liable to P.24
Andrew Burrows worried that the Roxborough decision, among others, indicated that the
High Court of Australia had lost its way at least so far as the law of restitution was
concerned.25 Graham Virgo and Jack Beatson doubted whether, as a basis for determining
when one person would be liable in restitution to another, unconscionability...is any more

19
England: Burrows, A Restatement of the English Law of Unjust Enrichment (Oxford University Press, 2012),
10; United States: American Law Institute, Restatement Third of Restitution and Unjust Enrichment, 5.
Though note the decision of the UK Supreme Court in Pitt v Holt [2013] 2 AC 108, which suggests that if As
payment to B took the form of a gift, B will only have been unjustly enriched as a result of As mistake if the
mistake was of sufficient gravity where a mistake will only be of sufficient gravity if A made a mistake
either as to the legal character or nature of the transaction that she was engaged in with B or as to some matter
of fact or law which [was] basic to the transaction (ibid, at [122]).
20
See, for example, David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353.
21
(2001) 208 CLR 516.
22
ibid, at [23]-[24] (per Gleeson CJ, Gaudron and Hayne JJ), [70]-[89] (per Gummow J).
23
Birks, Unjust Enrichment, 2nd ed (Oxford University Press, 2005), 6.
24
Birks, Receipt in Birks and Pretto (eds), Breach of Trust (Hart Publishing, 2002), 226.
25
Burrows, The Australian law of restitution: has the High Court lost its way? in Bant and Harding (eds),
Exploring Private Law (Cambridge University Press, 2010).
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principled or satisfactory a tool than unjust enrichment.26 They pointed out that Overall it is
more difficult to identify when a defendant has acted unconscionably than it is to determine
whether a defendant has been unjustly enriched.27
The English academic backlash against the Roxborough decision was unjustified, based
as it was on a lack of understanding of the root cause of the differences between the Anglo-
American position and the Australian position as to the basis of Ds liability to P in our
hypothetical.28 If we asked the early Birks, You say D will be held liable to P here because
D is unjustly enriched. We can all accept that D has been enriched but what does it mean to
be unjustly enriched? we would have received the following reply:
In the phrase unjust enrichment the word unjust might, with a different throw of the dice, have
been disapproved or, more neutrally, reversible. Those words might have been better in being
more obviously downward-looking to the cases. The essential point is that, whatever adjective
was chosen to qualify enrichment, its role was only to identify in a general way those factors
which, according to the cases themselves, called for an enrichment to be undone. No enrichment
can be regarded as unjust...unless it happens in circumstances in which the law provides for
restitution.29

So, in other words, when the early Birks said that D would be held liable to P in our
hypothetical because D was unjustly enriched, what he really meant was that D would be held
liable to P because their situation was one in which the decided cases indicated that P could
sue D for restitution of the enrichment that D had obtained at Ps expense.
This explanation of the basis of Ds liability to P would be regarded as perfectly
adequate by anyone who believes that integrity remaining faithful to the values and
principles that are immanent in the decided cases is the lodestar that should govern judicial
decisions. Someone who does not believe in the virtue of integrity would regard the early
Birks explanation of the basis of Ds liability as tautologous30 D is held liable to P because
the courts will hold D liable to P and would search around for some other explanation. And
our searcher might well hit on the explanation that D is held liable to P because it would be
morally wrong or unconscionable for D to hang on to the enrichment that he has obtained
at Ps expense.31
This, then, is the heart of the difference between the English academics and the High
Court of Australia in the way they approach our hypothetical. For the English academics,
integrity is everything:32 if the values and principles immanent in the cases on when one
person can sue another in restitution favour holding D liable to P, then D should be held
liable to P precisely because those values and principles favour holding D liable to P. In
26
Virgo and Beatson, Contract, unjust enrichment and unconscionability (2002) 118 LQR 352, 354.
27
ibid.
28
Cf. Kremer, Restitution and unconscientiousness: another view (2003) 119 LQR 188.
29
Birks, An Introduction to the Law of Restitution (Oxford University Press, 1985), 19.
30
For such a criticism, see Dietrich, Restitution: A New Perspective (Federation Press, 1998), 45-46; see also
Webb, What is unjust enrichment? (2009) 29 OJLS 215, 218-21.
31
Basing Ds liability to P on Ds being morally obliged to give up the enrichment that he has obtained at Ps
expense means that Birks accusations of incoherence are unjustified: the legal obligation arises because there is
a moral obligation. As to why the moral obligation arises: for a possible explanation of that see McBride and
McGrath, The nature of restitution (1995) 15 OJLS 33. I no longer endorse this explanation, but Kantians
might find it attractive.
32
This is certainly true of Andrew Burrows who, in his piece on The Australian law of restitution: has the High
Court lost its way? (above, n 25), remarks (at 74) that The common law is developed precisely by the
articulation of principle from a mass of decisions. Recognition of the principle against unjust enrichment
represents nothing more, and nothing less, than the application of standard common law techniques and shows
the common law working at its brilliant best. It was also true of late Birks who argued in his Unjust Enrichment
(above, n 23), at 10, that our notions of what amounts to an unjust enrichment must be developed through
analysis of the basis for restitution in one core case Kelly v Solari (1841) 9 M&W 54, 152 ER 24.
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contrast, the High Court of Australia is pursuing the way of simplicity, seeking to hold D
liable to P if and only if P has a moral duty to hand over to D the enrichment that he has
obtained at her expense.
As usual, pragmatism does not get a look-in.33 So lets give it a voice now and ask what
Alfred would say about whether D should be held liable to P in our hypothetical. Alfred
would begin by observing that the importance of stability the need for things tomorrow to
be the same as things today should incline us to hold D liable to P. However, the
importance of stability only gives us a weak reason to hold D liable should any significant
period of time elapse, the importance of stability would make us switch sides and we would
favour allowing D to hang onto the enrichment he has received from P. Alfred would
therefore favour very short limitation periods for P being allowed to sue D certainly no
more than a year.34
The weak reason that we have to hold D liable to P in our hypothetical will also be
overridden in the case where Ps money was paid to D as a gift.35 In this situation, Alfred
would not allow P to sue D for the value of the gift that she gave D merely on the basis that
she would not have made that gift had she not made a mistake. The reason is that the practice
of giving gifts strongly promotes human flourishing in forming productive bonds between
people.36 The value of gift-giving as an agent for promoting human flourishing would be
fundamentally undermined if every gift carried with it a potential lawsuit for its return. So
where Ps money was paid to D as a gift, Alfred would only allow P to sue D to recover the
value of that money if D received that money knowing that P had made a mistake in paying
that money to D. It is only by limiting recovery to that kind of case that people can receive
gifts confident in the knowledge that doing so will not be harmful to them by creating the
possibility of their being sued at some time in the future.37
Alfred would also not allow a claim for restitution to be made in the sort of case
presented in R (Child Poverty Action Group) v Secretary of State for Work and Pensions,38
where the government sought to recover social security payments that it had mistakenly
overpaid to recipients whose change of circumstances meant that their social security

33
Though see Hanoch Dagans The Law and Ethics of Restitution (Cambridge University Press, 2004), chapter
3, for a pragmatic reconstruction of the law on recovery of mistaken payments. Dagans analysis strikes me as
being too narrow, based as it is simply on a consideration of what a law on the recovery of mistaken payments
that was concerned to promote autonomy and utility would look like. Autonomy and utility only represent
a small fraction of the concerns that pragmatists need to bear in mind in deciding what the law should say.
34
It is interesting that the example Peter Birks gives to show that a defendant will have no answer to a claim
for repayment of money paid by mistake is one where As you are leaving a department store an assistant comes
running up to tell you that he has accidentally given you change for 50 when you had in fact paid with a 20
note (Unjust Enrichment (above, n 23), 6, emphasis added). I think most people would be strongly against
allowing the department store recovering the value of its overpayment if it wrote to you to inform you of its
mistake five years after the event.
35
Note that not all gratuitous transfers count as gifts: if the transferor was acting pursuant to a legal or moral
obligation, then the transfer will not amount to a gift. On this definition, the payments in Lady Hood of Avalon v
Mackinnon [1909] 1 Ch 476 (payment to elder daughter in mistaken belief that such payment was necessary to
match the payors treatment of the younger daughter) and the payments in Pitt v Holt (above, n 19) (payments
made under a discretionary trust) would not count as gifts.
36
See, further, Hyde, The Gift (Random House, 1983), chapter 4; and Wu, Restitution for mistaken gifts
(2004) 20 Journal of Contract Law 1, 22-25.
37
Wu (ibid, 29-33) would limit recovery to the cases where (1) P made it clear that her gift to D was being
made on a certain basis that failed to materialise; and (2) P made a serious mistake, going to the root of the gift,
in making her gift to D. (1) can probably be assimilated to the situation where Alfred would allow P to sue D. I
am more doubtful about (2), but if P made such a serious mistake, it may be that under the law of property no
transfer will have been made by P to D and P will have remedies against D under that area of law, rather than
the law of unjust enrichment.
38
[2011] 2 AC 15.
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payments should have been reduced. These payments, while gratuitous, were not gifts and so
Alfreds objections to allowing gift givers to recover the value of the gifts on the basis that
they were made because of a mistake would not apply to a Child Poverty Action Group type
case. However, subjecting some of the worst-off members of society to financial demands
that they would have to meet regardless of whether they could afford to do so unless they
could show that they were entitled to raise some sort of defence to that demand could be
expected to impair severely their already attenuated flourishing.
So in relation to mistaken transfers, Alfred could be expected to take positions quite
different from those adopted in the major common law jurisdictions: (1) otherwise valid gifts
that were made because of a mistake would not be recoverable unless the recipient of the gift
was aware of that mistake at the time they received the gift; (2) a similar rule would be
adopted for social security payments, and not just in cases where an incorrect assessment had
been made of how much someone should be paid but also in cases of accidental
overpayment;39 (3) in relation to other mistaken payments, there would be a right to recover
the value of the mistaken payment, but that right would be relatively short-lived.

B. Rylands v Fletcher

In our second case, D brings onto his land something (X) that is liable to do harm if it
escapes, in the course of using that land in a non-natural way. X does escape, and P suffers
harm as a result.
Again, there is a disparity between English and Australian law on whether D will be
held liable for the harm suffered by P here. Lets assume, for the sake of simplicity, that it
was foreseeable that P would suffer the harm she did if X escaped from Ds land: if it was
not, there could be no question of P recovering. Under the rule in Rylands v Fletcher,40 as
originally conceived, P would be able to sue D for compensation for the harm suffered by her
without having to prove that D was at fault for X escaping from Ds land. In Burnie Port
Authority v General Jones Pty Ltd,41 the High Court of Australia (by a 5:2 majority) declared
that the rule in Rylands v Fletcher did not form part of Australian law. The result is that if P
wanted to sue D in Australia for compensation for the harm she has suffered, she would have
to prove that D was at fault for the fact that X escaped from Ds land. In contrast, in Transco
plc v Stockport Metropolitan Borough Council,42 the House of Lords held that the rule in
Rylands v Fletcher is still good law in England, but also held that the rule should be seen as a
sub-species of liability for private nuisance, 43 with the result that P will only be entitled to
take advantage of the rule to sue D for compensation if: (1) she has an interest in land, and (2)
the harm she has suffered is that that land has been damaged by the escape of X. 44 If (1) and
(2) are not true of P, then P will have to prove that D was at fault for the escape of X in order
to sue D for compensation, just as she would have to do in Australia. So if P has suffered
personal injury as a result of the escape of X from Ds land, then she will have to prove that
D was at fault for that escape if she wants to recover compensation for that injury. 45

39
It was assumed in the Child Poverty Action Group case that such overpayments could be recovered as a
matter of course: ibid, at [1] (per Lord Brown).
40
(1866) LR 1 Ex 265, 279; affd, (1868) LR 3 HL 330, 338-40.
41
(1992-94) 179 CLR 520.
42
[2004] 2 AC 1.
43
ibid, at [9] (per Lord Bingham), [52] (per Lord Hobhouse), [92] (per Lord Walker).
44
ibid, at [9] (per Lord Bingham), [39] and [46] (per Lord Hoffmann), [54] (per Lord Hobhouse).
45
ibid, at [9] (per Lord Bingham), [35] (per Lord Hoffmann), [52] (per Lord Hobhouse).
10

The differences between the English and Australian courts come down to differences
over what integrity demands. The majority in the High Court of Australia in Burnie took the
view that the rule in Rylands v Fletcher could no longer be said to fit within a tort law that
had come to be dominated by values and principles that demanded that a defendant should
only be held liable to compensate a claimant for harm that the defendant was at fault for
causing or failing to prevent,46 and that those values and principles had already started to
reshape the rule so as to make it a fault-based liability rule rather than one of strict liability. 47
So the majority in Burnie thought that declaring that the rule was no longer part of Australian
law merely took these developments to their logical conclusion.48 McHugh J dissented,
arguing that liability under the rule in Rylands v Fletcher remained distinct from liability in
negligence,49 and that
To incorporate the rule in Rylands v. Fletcher into the law of negligence by judicial decision
would be a far reaching step, going beyond previous developments of the common law by this
Court. Here the Court is dealing with a rule which has been explained and applied by this Court
on numerous occasions. It is a fixed rule of law, as imperative as a statutory command. It has been
applied in this country for more than one hundred years.50

In other words, abolishing the rule in Rylands v Fletcher would involve a failure of integrity,
not an application. In Transco, Lord Hoffmann agreed, in terms that strongly echoed
McHugh Js words: I do not think it would be consistent with the judicial function of your
Lordships House to abolish the rule. It has been part of English law for nearly 150 years...
[Abolishing the rule] would be too radical a step to take.51
Various academics have taken up the challenge of trying to determine what integrity
demands in relation to the rule in Rylands v Fletcher.52 More interesting, for my purposes, is
to ask what a pragmatist like Alfred thinks the law should say in our hypothetical. Alfreds
starting point would be Brian Simpsons observation that if D brings something (X) onto his
land that is liable to do harm if it escapes, Those who live or work in the area thought to be
endangered [by the presence of X on Ds land] can conceive of themselves as permanently
and continuously threatened.53 Causing people to live in a state of permanent anxiety will
inevitably impair their flourishing as human beings.54 However, D can do something to
alleviate that anxiety by guaranteeing those who live in the shadow of being harmed by what
he is doing on his land that should the worst happen, he will make good the losses that they
suffer as a result. This guarantee will not work to remove completely the anxiety that those
who live near Ds land will experience, but it will help. So in the interests of ensuring that
whatever D is doing on his land will not impair the flourishing of those living nearby who are
threatened with harm on a day-to-day basis by what D is doing, Alfred will think it right for
the law to require D to compensate any such individuals who are actually harmed as a result
of something escaping from Ds land.
So whether Alfred thinks that P should be able to sue D on a strict liability basis for the
harm she has suffered will depend a lot on who P is. Alfred will only be willing to allow P to

46
(1992-94) 179 CLR 520, at 541-44.
47
ibid, at 545-48.
48
ibid, at 540-41, 556-57.
49
ibid, at 591.
50
ibid, at 592.
51
[2004] 2 AC 1, at [43].
52
Murphy, The merits of Rylands v Fletcher (2004) 24 OJLS 643; Beever, Lord Hoffmanns mouse (2004)
10 New Zealand Business Law 161; Nolan, The distinctiveness of Rylands v Fletcher (2005) 121 LQR 421.
53
Simpson, Bursting reservoirs and Victorian tort law: Rylands and Horrocks v Fletcher (1868) in Simpson,
Leading Cases in the Common Law (Oxford University Press, 1995), 201.
54
McBride, Tort law and human flourishing (above, n 8), 47-49.
11

hold D strictly liable to compensate her for the harm she has suffered if she lived in the area
that was threatened with harm as a result of Ds bringing X onto his land. It is only if she
lived in that area that she will have felt any anxiety about being harmed as a result of Xs
escaping from Ds land and would have needed a guarantee that she would be indemnified
against that harm in order to alleviate that anxiety. So if P were a tourist who happened to be
in the vicinity of Ds land when X escaped, Alfred would see no justification for holding P
strictly liable for the harm suffered by D as a result of that escape. But if P were someone
who was living in the area that was threatened with harm as a result of Ds bringing X onto
his land, Alfred would allow her to sue D for compensation for the harm suffered by her
irrespective of what that harm happened to be. Alfred will see no justification for the English
position that P will be allowed to sue D on a strict liability basis if land in which she had an
interest was harmed as a result of Xs escape, but will be forced to sue D in negligence if Xs
escape caused P to suffer some kind of physical injury. Alfred will think there is no reason
why the law should seek to alleviate the anxieties of landowners whose holdings are
threatened by the presence of X on Ds land while leaving untouched the anxieties of local
children who may be physically harmed if X escapes from Ds land. All need the reassurance
that they will be made whole (so far as it can be done) if the worst happens, and all should
receive that reassurance.
So Alfred will end up taking a position that is distinct from both the Australian and
English positions on the rule in Rylands v Fletcher. Alfred will oppose both the Australian
rejection of the rule in Rylands v Fletcher and the English restriction of liability under the
rule in Rylands v Fletcher to cases where someone with an interest in land has suffered harm
to that land. Instead, Alfred will favour the laws giving effect to a rule that says that where D
brings something onto his land that is liable to do harm if it escapes in the course of a non-
natural use of that land, then he should be held strictly liable to those who live in the vicinity
of Ds land for any foreseeable harm that they suffer as a result of that thing escaping.

C. Vicarious liability

In our third case, D employs E, who commits a tort X in relation to P. The question is
whether D will be held vicariously liable in respect of Es tort.55 We can distinguish five
different variations on this basic situation:

(1) E committed tort X on Ds instructions;


(2) E was doing something he was employed to do by committing tort X;
(3) The nature of Es employment by D endowed E with certain rights, powers or skills
that helped E to commit tort X;
(4) E could not have committed tort X unless he was employed by D.
(5) Es committing tort X had nothing to do with his being employed by D.

Until the turn of the century, the various common law jurisdictions agreed that D could only
be held vicariously liable for Es tort in situations (1) and (2).56 However, this consensus was

55
Of course, there are many situations not involving an employment relationship where one person can be held
vicariously liable in respect of someone elses tort: see McBride and Bagshaw, Tort Law, 4th ed (Pearson
Education, 2012), 867-69 for a summary, and also Various Claimants v Catholic Child Welfare Society [2013] 2
AC 1 and Cox v Ministry of Justice [2014] EWCA Civ 132, holding that A may be held vicariously liable for
Bs tort if A and B were in a relationship akin to employment. However, these non-employment vicarious
liability cases fall outside the scope of this paper.
12

broken by the Supreme Court of Canada in Bazley v Curry,57 holding that D could also be
held vicariously liable for Es tort in situation (3), while simultaneously ruling in Jacobi v
Griffiths58 that D could not be held vicariously liable for Es tort where only (4) was true. The
House of Lords quickly followed the Supreme Courts example in Lister v Hesley Hall Ltd.59
However, the High Court of Australia held itself aloof from these developments, reaffirming
in New South Wales v Lepore60 the traditional line that D can only be held vicariously liable
for Es tort in situations (1) and (2).61
The High Court of Australias refusal to follow the example of the Supreme Court of
Canada and the House of Lords was based on its valuing integrity more than the pragmatism
that motivated the expansion of the law on vicarious liability in Canada and England. This
was understandable: the pragmatic considerations that the courts in Canada and England have
identified as underlying their decisions to extend vicarious liability beyond its traditional
boundaries are patently unsatisfactory.
In Bazley v Curry, McLachlin J identified two policy concerns as underlying the law on
vicarious liability: (1) the concern to provide a just and practical remedy to people who
suffer as a consequence of wrongs perpetrated by an employee; 62 and (2) deterrence of
future harm.63 Vicarious liability, McLachlin J argued, is practical in that it provides the
victim of a tort committed by an employee with a remedy against a solvent defendant, and it
is just to hold the employer vicariously liable for that employees tort where the nature of the
employees work created a special risk that the employee would commit the tort that he did. 64
The prospect of being held vicariously liable for his employees torts helps to deter future
harm by encouraging an employer to take imaginative and efficient steps to reduce any risks
of wrongdoing that are associated with the kind of work he is employing his employees to do,
and to discipline employees who are guilty of wrongdoing. 65 The English courts have, at
various points, endorsed both of these policy concerns as justifying the current shape of the
law on vicarious liability in England.66
However, neither of these policy concerns provide a satisfactory basis either for the
institution of vicarious liability or its extension in Anglo-Canadian law to type (3)
situations.67 If the existing law on vicarious liability were based on McLachlin Js twin policy
concerns that we would expect: (a) an uninsured employer not to be held vicariously liable in
respect of torts committed by one of her employees that she could not reasonably be expected
to have prevented; (b) a company to be held vicariously liable in respect of torts committed

56
Subject to the normal qualification that there might be situations where D is estopped from denying that either
(1) or (2) are true and is therefore held liable on the basis that (1) or (2) are true even though they are not. See,
further, McBride and Bagshaw, Tort Law, 4th ed (above, n 55), 877-78.
57
[1999] 2 SCR 534.
58
[1999] 2 SCR 570.
59
[2002] 1 AC 215.
60
(2003) 212 CLR 511.
61
ibid, at [72]-[73] (per Gleeson CJ), [126] (Gaudron J), [166] (McHugh J), [223] (Gummow and Hayne JJ),
[345] (Callinan J). Kirby J argued in favour of adopting the Anglo-Canadian approach to determining when E
committed his tort in the course of his employment.
62
[1999] 2 SCR 534, at [30].
63
ibid, at [29], [32].
64
ibid, at [30]-[31].
65
ibid, at [33].
66
In support of policy concern (1), see Lister v Hesley Hall Ltd [2002] 1 AC 215, at [65] (per Lord Millett), and
Various Claimants v Catholic Child Welfare Society (above, n 55), at [34]-[35] (per Lord Phillips). In support of
policy concern (2), see Majrowski v Guy and St Thomass NHS Trust [2007] 1 AC 224, at [9] (per Lord
Nicholls), and Gravil v Carroll [2008] EWCA Civ 689, at [26]-[27].
67
See, further, McBride and Bagshaw, Tort Law, 4th ed (above, n 55), 886-90; Neyers, A theory of vicarious
liability (2005) 43 Alberta LR 287, 291-301.
13

by another company that is owned by the first company and which the first company exerts a
great deal of control over; (c) a school to be held vicariously liable in respect of torts
committed by children in the schools playground; and (d) an employer to be held vicariously
liable in respect of torts committed by an employee which the employees work gave him an
opportunity to commit and which the employer might have been able to prevent. However,
none of these things are true, and no one has suggested the law should be changed to make
them true.
The pragmatism practised by the Canadian and English courts in recent vicarious
liability cases is the kind that gives pragmatism a bad name. But can Alfred do any better?
What would he say as to whether D should be held vicariously liable in respect of Es tort in
our hypothetical?
Alfred would begin by observing that the real justification for an employer being held
vicariously liable in respect of an employees tort lies not in the security that this provides the
victim of the employees tort, but in the security it provides the employee. 68 While under a
system of vicarious liability an employee could technically still be sued by the victim of his
tort, or even by his employer,69 this is unlikely to happen: so a system of vicarious liability
helps to alleviate any anxiety an employee might feel that he will be held liable in tort for
something he has done while working for his employer. Alleviating this anxiety is a real good
in that as we have seen the existence of anxiety operates to impair someones flourishing
as an individual. However, it might be asked, why should we go out of our way to alleviate
this anxiety when it is experienced by an employee, when if the employee went into business
on his own account, he would have to cope with this anxiety on his own? Are we not, through
the law on vicarious liability, giving people who work for others an unfair advantage over
those who work for themselves?
One possible answer to this challenge is that people who go into business on their own
account have the ability to alleviate any anxieties that they might experience as to whether
they will be held liable in tort for what they do in running that business by purchasing
liability insurance while this option may not be available to an employee because of lack of
means. A deeper answer might point to the fact that going into business on ones own
account creates much greater opportunities for flourishing as an individual than is the case
where one works for someone else; by contrast, the choice to work for someone else creates
much greater threats to the prospects of ones flourishing than is the case where one works
for oneself.70 Given this, we may have special reasons for seeking to support the flourishing
of employees that do not apply, or do not apply so strongly, in the case of people who are in
business on their own account.
Having in this way determined that vicarious liability in the employment context can be
justified on pragmatic grounds, Alfred will then turn to the question: For what torts should an
employer be held vicariously liable? Alfred will observe that while it is good to alleviate
employees anxieties that they might be held liable in tort for something they have done
while working for their employer, (1) there is no need to alleviate those anxieties where it
would be easy for the employee to avoid acting in a way that might result in his incurring a
liability in tort; and (2) it would be bad to alleviate those anxieties where doing so would
encourage the employee to think that he could go ahead and commit a tort in relation to
someone else without fear of incurring any liability for his actions.

68
This is Jason Neyers crucial insight: see ibid, 301-304.
69
Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555.
70
For further explorations of this point, see Marx, Capital, Volume One (1867), Chapter 7, Section 1 (The
labour process); Braverman, Labor and Monopoly Capital: The Degradation of Work in the Twentieth Century
(Monthly Review Press, 1974), Part I: Labor and Management; Crawford, The Case for Working With Your
Hands (Penguin Books, 2009).
14

Given these concerns, Alfred would be skeptical as to the necessity, and the wisdom, of
holding an employer vicariously liable in respect of a tort that was intentionally committed by
one of his employees, except in the situation where the employer authorised the commission
of the tort in which case, there is no doubt that the employer should be held co-responsible
for the commission of that tort. Outside that special case, there seems no need to reassure
employees that if they end up intentionally committing a tort while working for someone else
that their employer will be held vicariously liable for that tort. Moreover, as most torts that
are committed intentionally also amount to crimes, it would seem highly desirable to
reinforce the criminal law by making it clear to an employee who is thinking of committing a
tort that he and only he will be charged with the responsibility of repairing the consequences
of that tort. This will be especially important where the employee in question is a police
officer, or some other public servant, who is unlikely to face criminal sanctions if he
intentionally commits a tort on the job; in such cases, the potential for moral hazard arising
out of an employer being held vicariously liable for a tort intentionally committed by his
employee is very high.
So, at least so far as vicarious liability for torts that have been committed intentionally
is concerned, Alfred will end up taking a more restrictive position than any of the common
law jurisdictions mentioned in this section. If the tort committed by E in our hypothetical was
intentionally committed, Alfred will only favour holding D vicariously liable for that tort in
situation (1), while in Australia D will also be held vicariously liable for Es tort if (2) is true,
and in Canada and England D will also be held vicariously liable for Es tort if (3) is true.

D. Breach of statutory duty

In our fourth and final case, D breaches a statutory duty that was imposed on him for Ps
benefit. As a result of that breach of statutory duty, P suffers the very kind of harm that Ds
duty was imposed on him in order to avoid.
In Canada, P will not be able to sue D for damages based simply on the fact that D
breached a statutory duty owed to her in acting as he did unless the legislature that created
that duty expressly said that P should be allowed to sue D for damages.71 If the legislature
was silent on this issue, P will have to frame her claim against D in negligence. As a result,
she will be denied any remedy against D if the statutory duty that D owed her was strict
requiring D to ensure that something did or did not happen and D was not at fault in
breaching that duty.
In the rest of the common law world, P may be able to bring a claim for breach of
statutory duty against D, even if the legislature that created Ds duty was silent on the issue of
whether P should be entitled to a remedy against D for Ds breach. P will be able to bring a
claim for breach of statutory duty against D unless there is good reason to think that the
relevant legislature did not intend that such a claim should be available to P.
However, there is one respect in which the position in England has moved towards that
in Canada. Section 47(2) of the Health and Safety at Work Act 1974 (as amended by s 69 of
the Enterprise and Regulatory Reform Act 2013) provides that Breach of a duty imposed by
a statutory instrument containing...health and safety regulations shall not be actionable except
to the extent that regulations under this section so provide. So if the statutory duty breached
by D amounted to a health and safety regulation, then both England and Canada give the
same answer to the question of whether P is entitled to bring a claim for breach of statutory

71
R v Saskatchewan Wheat Pool [1983] 1 SCR 205.
15

duty against D: P will only be allowed to bring such a claim if the legislative body that
created Ds duty expressly provided that P would be allowed to bring such a claim.
Both the Canadian position on when someone can bring a claim for breach of statutory
duty, and the similar position in England with regard to breaches of health and safety
regulations, were motivated by concerns that D should not be held liable to pay damages to P
in our hypothetical if the duty D breached was strict and D was not at fault for breaching that
duty. In R v Saskatchewan Wheat Pool, Dickson J observed that:
there seems little in the way of defensible policy for holding a defendant who breached a statutory
duty unwittingly to be...obligated to pay even though not at fault... The legislature has determined
the proper penalty for the defendants wrong but if tort admonition of liability without fault is to
be added, the financial consequences will be measured, not be the amount of the penalty, but by
the amount of money which is required to compensate the plaintiff. Minimum fault may subject
the defendant to heavy liability. Inconsequential violations should not subject the violator to any
civil liability at all but should be left to the criminal courts for enforcement of a fine.72

Despite the reference to defensible policy, this passage is really animated by a regard for
integrity: a desire to harmonise the law on when a breach of statutory duty will be civilly
actionable with both the dominance of fault-based liability in the rest of tort law, and with the
penalties imposed by the criminal law on those who breach a statutory duty. The English
retreat from the position that even faultless breaches of statutory duties will normally be
civilly actionable if the statutory duty in question is a health and safety measure, particularly
one affecting the workplace, is based on avowedly pragmatic grounds: (1) a concern that if
defendants are held liable for such faultless breaches then they might well think there is no
point in taking care to prevent harm to people like the claimant; 73 (2) a concern that it was
becoming too easy to sue businesses for a breach of statutory duty, at a time when straitened
economic circumstances seemed to demand that the costs of doing business in the UK be
reduced, not increased.74
So lets suppose that in the hypothetical we are considering D breached a strict duty
arising under some health and safety legislation, and D was not at fault for that breach.
Would Alfred adopt the Anglo-Canadian position that P cannot bring a claim for breach of
statutory duty against D in this situation? Or would Alfred adopt the position that obtained in
England before the Enterprise and Regulatory Reform Act 2013, and which still prevails
everywhere else in the common law world other than in England and Canada: that P will be
entitled to bring a claim for breach of statutory duty against D unless the legislative body that
created the duty breached by D did not intend that Ds breach should be civilly actionable?75
The answer is that Alfred would do neither of these things.
Alfred as a good lawyer would reject the Canadian position that a claim for breach
of statutory duty can only be brought if the legislative body that created the duty intended that
it should be available: a claim for breach of statutory duty is a creation of the common law,
not the legislature,76 and is designed to give the claimant the monetary equivalent of what that
duty was supposed to give them. But in considering whether a claim for breach of statutory

72
ibid, 224-25.
73
See Lfstedt, Reclaiming Health and Safety For All: An Independent Review of Health and Safety Legislation
(Stationery Office Ltd, 2011), 91-92.
74
Only this could account for why the UK government reacted to Ragnar Lfstedts very modest proposal (ibid)
that the government get rid of strict statutory duties that applied to business or make it clear that a breach of
those duties would not be civilly actionable by completely sweeping away all rights to bring a claim for breach
of statutory duty for any breach of a health and safety regulation.
75
For the position in Australia, see OConnor v S P Bray Ltd (1936) 56 CLR 464, 478 (per Dixon J); Sovar v
Henry Lane Pty Ltd (1967) 116 CLR 397.
76
See London Passenger Transport Board v Upson [1949] AC 155, 168 (per Lord Wright).
16

duty should be available in our hypothetical where D has breached a strict duty Alfred
would distinguish between statutory duties that are truly strict and statutory duties that are
tactically strict.
Ds strict duty to safeguard Ps health and safety in our hypothetical will be truly strict
if the legislative body that created that duty intended that D should do more than just take
reasonable steps to safeguard Ps health and safety: that D should do everything possible to
safeguard Ps health and safety.77
On the other hand, Ds duty will be tactically strict if the legislative body only intended
that D take reasonable steps to safeguard Ps health and safety but phrased Ds duty as a duty
to ensure Ps health and safety for ex ante or ex post tactical reasons. Ds duty will be
tactically strict for ex ante reasons if the legislative body thought that D could not be trusted
correctly to assess what taking reasonable steps to safeguard Ps health and safety would
involve and so would only take such reasonable steps if he were subjected to a stricter duty.
Ds duty will be tactically strict for ex post reasons if the legislative body thought that
because of difficulties of proof, an unacceptable number of at-fault defendants would escape
successful prosecution for breach of statutory duty were their duty phrased in terms of taking
reasonable steps and in order to ensure that did not happen, their duty was phrased instead
as a duty to ensure other peoples health and safety.
If Ds duty were truly strict, then Alfred would favour P being allowed to sue D for
breach of statutory duty even though D was not at fault for breaching that duty, unless of
course there was evidence that the legislative body that created that duty did not intend that
breaches of that duty should be civilly actionable. However, if Ds duty were tactically strict,
Alfred would oppose Ps being allowed to sue D for breach of statutory duty on the basis that
Ds duty was really intended to ensure that reasonable steps were taken to safeguard Ps
health and safety and as such reasonable steps were taken, P has not been deprived of
anything that she was intended to have.78
But how can we tell whether a strict duty is truly strict or tactically strict when it is not
clear what the legislative body intended in creating that duty? A useful rule of thumb might
be: A strict duty to ensure that X happens will be assumed to be truly strict if and only if there
was a good reason for wanting the subject of that duty to do more than just take reasonable
steps to ensure that X happened. But when will Alfred think that is the case?
It is at this point that Alfreds pragmatism comes to the fore. Alfred will note that when
we subject D to a truly strict duty to ensure that X happens, we are requiring D to be zealous
about ensuring that X happens. Merely requiring that D take reasonable steps to see that X
happens requires and allows D to balance the importance of achieving X against other
concerns in deciding what precautions to take to ensure that X happens.79 Subjecting D to a

77
For an alternative reading of what truly strict duties require, see Gardner, Obligations and outcomes in the
law of torts in Cane and Gardner (eds), Relating to Responsibility (Hart Publishing, 2001), where Gardner
asserts that a truly strict duty is a duty to ensure that X happens, and that duty does not require the subject of the
duty to do anything at all: so long as X happens, the duty is complied with. But it is hard to see what is the point
of the laws imposing on us a duty that is not meant to be acted on and is not meant to guide our conduct.
78
If Ds duty were tactically strict for ex post reasons, then in a case where it was uncertain because of
difficulties of proof whether D did take reasonable steps to safeguard Ps health or safety, Alfred might favour
allowing P to sue D in negligence unless D could prove that he had not been negligent. In effect, Alfred might
allow Ds breach of statutory duty to be used as evidence that D had been negligent, thus casting the burden on
D to prove that he had not been negligent.
79
Most notably, if D is merely under a duty to take reasonable steps to ensure that X happens, he will be
entitled at some point to refuse to take steps that might help ensure that X happens on the ground that doing so
would be too burdensome: see McBride and Bagshaw, Tort Law, 4th ed (above, n 55), 252-55. If D is under a
truly strict duty to ensure that X happens, D is not allowed to rely on the too burdensome argument to excuse
himself from taking a step that would help to ensure that X happens.
17

truly strict duty to ensure that X happens is intended to make those other concerns irrelevant
D is required to be single-minded about ensuring that X happens.
Alfred will acknowledge that zealousness is socially beneficial where: (1) it is directed
at achieving some valuable goal, where a goal will only count as valuable if its pursuit and
achievement is compatible with the principles set out in Section II, above; and (2) achieving
that goal is a complex task and therefore unlikely to be achieved without being single-minded
about achieving it. Alfred will further think that we have good reason to require people to be
zealous where (1) and (2) zealousness is socially beneficial, (3) the obligation to be zealous
would attach to a position or office that is voluntarily assumed (so that the narrowing effect
of requiring someone to be zealous is not foisted on someone against their will), and (4)
requiring people to be zealous in that position or office would help insulate them from
external pressures to take other considerations into account in deciding what to do in that
position or office in other words, to be reasonable in the depressing, mediocrity-inspiring
sense of that phrase.
So Alfreds position on whether P should be allowed to bring a claim for breach of
statutory duty against D in our hypothetical where D has breached a strict statutory duty
regarding health and safety without being at fault for the breach is much more complex than
any of the positions adopted by the various common law jurisdictions on this issue. He would
reject the Anglo-Canadian rule that P will not be allowed to bring a claim for breach of
statutory duty unless the legislative body that created Ds duty made it clear that it intended
that D should be allowed to bring such a claim. However, Alfred would not just assume as
English law used to, and other common law jurisdictions continue to assume that P will be
allowed to bring a claim for breach of statutory duty unless there is evidence that the
legislative body that created Ds duty did not intend that P should be allowed to bring such a
claim. Before Alfred got to the stage of looking for such a negative intention, he would first
want to see whether conditions (1) (4), above, are satisfied. If they are not, he will conclude
that Ds strict duty was tactically strict rather than truly strict, and will turn down Ps claim
on the basis that P has not been deprived of anything that she was intended to have.

IV. ARGUMENTS FOR SUB-OPTIMALITY

It is well known that Oliver Wendell Holmes rejected the way of integrity:
It is revolting to have no better reason for a rule of law than that so it was laid down in the time of
Henry IV.80

and the way of simplicity:


The life of the law has not been logic: it has been experience. The felt necessities of the time, the
prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even
the prejudices which judges share with their fellow-men, have had a good deal more to do than the
syllogism in determining the rules by which men should be governed.81

I think it important to expose...[the] fallacy...that the only force at work in the development of the
law is logic... The danger of which I speak is...the notion that a given system, ours, for instance,
can be worked out like mathematics from some general axioms of conduct... [The] logical method
and form flatter that longing for certainty and for repose which is in every human mind. But
certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a
judgment as to the relative worth and importance of competing legislative grounds, often an

80
Holmes, The path of the law (1896-97) 10 Harvard Law Review 457, 469.
81
Holmes, The Common Law (1881), 5.
18

inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole
proceeding.82

But there is more rhetoric than argument in these positions. Having explained in detail what a
pragmatic approach to deciding crossroads cases where the law is unsettled or unclear looks
like, I want in this section to ask whether we should like Holmes prefer such an approach
to the way of integrity or the way of simplicity. Most people would agree that we should
favour the way of pragmatism unless a good argument can be made in favour of adopting a
different approach. After all, why should we oppose judges deciding crossroads cases in ways
that will make things go best if there is no good reason for them not to do this? So we should
prefer the way of pragmatism unless a good argument can be made for pursuing a sub-
optimal strategy. In this section we will see what can be said in favour of pursuing the ways
of simplicity or integrity, even though pursuing those ways might not make things go best.

A. Speaking With One Voice

In Laws Empire, Ronald Dworkin argued that our political institutions are required to treat
us with integrity they are not allowed to give effect to one vision of what justice, fairness,
and procedural due process require in dealing with a particular person, and an entirely
different vision of what those values require in dealing with someone else. If they did so, they
could not argue that they were treating us with equal concern and respect in their dealings
with us.83
If this is right, then it may rule out our adopting a pragmatic approach in deciding
crossroads cases. If the existing law which is applied in cases where it clearly applies is
best interpreted as giving effect to a particular value or pursuing a particular goal, such as
protecting independence or promoting wealth maximisation, then integrity would seem to
demand that we give effect to the same value or pursue the same goal in deciding crossroads
cases. Not to do so would mean that we are treating parties in cases where the law is clear
according to a different set of standards or values than we would in cases where the law is
unclear or unsettled.
However, a pragmatic judge like Alfred could argue that he is speaking with one voice
both when he is giving effect to the established law, and when he is adopting a pragmatic
approach to deciding cases where the law is unsettled and unclear. Whatever ideals may be
responsible for the production of the established law, the high importance Alfred puts on
stability will mean that he can easily justify giving effect to the established law in cases
where it clearly applies: not to do so would disappoint too many legitimate expectations on
which people will have reasonably relied. So in both clear cases and unclear cases, Alfred
will be speaking with one voice: as a pragmatist, concerned to ensure that the society for
which he acts as a judge is a caring society.

B. Soullessness

One objection that is sometimes made to the idea that people should act like utilitarians that
is, that they should decide what to do on any occasion according to what would make things
go best in terms of maximising utility is that such people would have no identity, in the

82
Holmes, The path of the law (above, n 80), 465-66.
83
Dworkin, Laws Empire (above, n 4), chapter 6.
19

sense that nothing would be ruled out for them.84 They would lack any genuine attachments,
as a utilitarian would be willing to break any bond that he has temporarily formed with
someone else or some activity if doing so would maximise utility. And as utilitarians lack any
genuine attachments or loyalties, they have nothing about them that distinguishes them as a
person, except perhaps their lack of personality.
A similar objection might be made to adopting a pragmatic approach to deciding
crossroads cases. Adopting such an approach might deprive the law of any distinctive
personality that would command our loyalty. Paradoxically, we might be put off a legal
system that sought to make things go best for us: such a system might be too colourless, too
technical, too soulless, to make us feel any allegiance towards it. The only way we could feel
any attachment to the law, the argument would go, would be if either (1) the law manifested a
coherent, organic, history of growth and change that would allow us to see the law as a living
thing that we might want to nurture and protect; or (2) the law could be seen as single-
mindedly giving effect to one simple ideal that commands our respect and allegiance. A legal
system that pursues the way of integrity will be able to claim (1) about itself.85 A legal system
that pursues the way of simplicity will be able to claim (2) about itself so long, of course, as
it is centred on the pursuit of an attractive ideal.86 But a legal system that adopts a pragmatic
approach to determining the outcome of a crossroads cases will not be able to claim either (1)
or (2) about itself. How, then, can it inspire our loyalty?
I think the concern that a legal system not become soulless is a very serious one
though it is not one (so far as I know) that has so far commanded any attention from legal
scholars.87 However, I think that three considerations work together to indicate that a
pragmatic legal system will have enough about it to command a fair degree of allegiance
from its subjects. First, the members of a caring society could be expected to feel a great deal
of national pride in that they will be aware that they are living in a society that any rational
person would want to live in. They will feel a corresponding pride in the institutions that are
responsible for their society being a caring society. Secondly, a pragmatic legal system will
make certain distinctive commitments for example, to the importance of everyones
flourishing, without exception, and to the importance of stability that will endow it with a
character that people could identify with and feel loyalty towards. Thirdly, the importance
that a pragmatic legal system places on stability will mean that it will seek to work with the
grain of local customs and practices rather than against them. So a pragmatic legal system
will have a sufficiently local flavour in terms of its rules and doctrines to encourage those
who live under that legal system to think of that system as theirs rather than something that
has sprung from the mind of a Prussian philosopher or a Chicago economist.

84
See Williams, A critique of utilitarianism in Smart and Williams, Utilitarianism: For and Against
(Cambridge University Press, 1983); Rawls, Social unity and primary goods in Sen and Williams (eds),
Utilitarianism and Beyond (Cambridge University Press, 1986), 180-81;
85
Cf. the classical defence of the common laws legitimacy and authority as resting on its continuity with the
past: Postema, Bentham and the Common Law Tradition (Oxford University Press, 1986), chapter 1.
86
Cf. Richard OSullivans celebration of the common law as elaborat[ing] a social system based upon the
dignity of human personality and the intellectual and moral personality of Everyman: OSullivan, The
Inheritance of the Common Law, Hamlyn Lectures Second Series (Stevens & Sons, 1950), 21.
87
Though see Rodger, Say not the struggle naught availeth: the costs and benefits of mixed legal systems
(2003-04) 78 Tulane Law Review 419, observing of proposals that all European legal systems adopt a common
code of private law it is boring enough to find branches of McDonalds, the Body Shop, and Benneton in every
major European city without finding exactly the same law too (at 431) and I find it hard to imagine ever
feeling any...enthusiasm for the doubtless worthy, but ultimately grey, products of the various commissions who
toil with the ultimate aim of creating a civil code for Europe (at 433).
20

C. Sacrifice

The best way of introducing this third objection to adopting a pragmatic approach to deciding
crossroads cases is through a fable, about Terry and Julie. Terry and Julie met, fell in love,
and got married. In time, they had a child, Ray. Various factors meant that over time, Terry
and Julie found it harder and harder to get along with each other. They were reluctant to get
divorced because they knew that Ray would be very hurt if they broke up. However, in the
end they decided to divorce, and Ray predictably experienced years of hurt as a result of
this decision. A good few years have now elapsed, and Terry and Julie have found
themselves developing feelings for each other again. It is likely that if they were to get
remarried, everyone Terry, Julie and Ray would be happier all round. However, it might
still be wrong for Terry and Julie to get back together. The reason is that if they did so, then it
would be as if the years of hurt that Ray suffered were suffered for nothing. The sacrifice of
his feelings and happiness would have been in vain.
A similar argument can be made against adopting a pragmatic approach to deciding
crossroads cases and in favour of pursuing the way of integrity instead. The idea is that the
interests of defendants like Mrs Solari,88 Thomas Fletcher,89 Hesley Hall Ltd,90 and Lord
Wimborne91 were sacrificed so that the English legal system could give effect to certain
principles or pursue certain goals. Not to give effect to those principles, or to give up on the
pursuit of those goals, in deciding crossroads cases would seem to make light of the sacrifice
that these defendants were required to make when their cases were decided against them. The
only way of doing justice to their sacrifice is to keep on going in the direction that English
law took when it decided those cases.
Two possible responses could be made to this argument in favour of the way of
integrity. The first is that we will only dishonour the sacrifices made by people like the
defendants named above through changing the laws direction if the results in the cases
involving those defendants would have been different under the new direction. But all of the
above-named defendants would still have been held liable even if the law were restructured
along the pragmatic lines set out in Section III, above. 92 The second response is that past
sacrifices cannot claim to freeze our politics forever. We can honour those sacrifices by
making a corresponding sacrifice of our own interests by acting in a sub-optimal way for a
while but after that period is over, we will be entitled to move on and do what is best for
ourselves.93 So there is a statute of limitations on how long past sacrifices can claim to
constrain our freedom of action, with the result that we are free, after a decent interval, to
change the law in ways that reveal decisions in past cases to be regrettable mistakes.

88
Kelly v Solari (above, n 32) (assuming that she was eventually held liable, which seems likely).
89
Rylands v Fletcher (above, n 40).
90
Lister v Hesley Hall Ltd (above, n 59).
91
Groves v Wimborne [1898] 2 QB 402.
92
While Hesley Hall Ltd would not have been held vicariously liable for their caretakers acts of sexual assault,
it could have been held liable under other, well-established principles of law: see McBride and Bagshaw, Tort
Law, 4th ed (above, n 55), 879-80, and the recent decision of the UK Supreme Court in Woodland v Essex
County Council [2013] UKSC 66.
93
So there would be less objection to Terry and Julie getting back together again if, after having rediscovered
their feelings for each other, they waited a while before getting back together out of respect for what they put
Ray through when they broke up.
21

D. Independence

The fourth objection to pursuing the way of pragmatism in deciding crossroads cases is that
there is no moral space to decide crossroads cases in a pragmatic way. The basis for this
objection is the view that everyone has a right to independence. If this is correct, then the
only basis for interfering with someone's right to independence is in order to protect someone
else's right to independence. This leaves no room for a court to make orders against someone
else on the basis that doing so will make things go best.
But do we have a right to independence? It does not seem possible to prove the
existence of such a right directly.94 However, it might be possible to show that we have such
a right indirectly, by showing that certain beliefs that we are not willing to give up
presuppose that we have such a right. Two legal theorists have made this kind of indirect
argument in favour of the view that we have a right to independence. Unfortunately, neither
argument works,
In his essay Are there any natural rights?95 HLA Hart argued that if there are any
rights, then there must be a right to independence because the function of rights is to tell us
when we are justified in interfering with their freedom by choosing for them what they will
do. But we would only need such justification if there were a right to independence. If there
were no such right, then there could be nothing wrong in interfering with peoples freedom.
However, this argument does not show that we have the kind of absolute right to
independence that would exclude judges from interfering with peoples independence on
pragmatic grounds. Harts argument merely shows that we have an interest in having our
independence respected that means that it would be wrong to interfere with our independence
without having a good reason for doing so.96 So Harts argument does not show that it would
be wrong to interfere with our independence on pragmatic grounds.
In his article Beyond the harm principle97 Arthur Ripstein argues in favour of our
having a right to independence by inviting us to consider a case where he takes a nap in your
bed while you were away at the office. Even if Ripstein's nap does not cause you to suffer
any harm and Ripstein is very careful to set up his hypothetical so that his nap does not
cause you to suffer any harm we would still think that the law is justified in forbidding
Ripstein from taking a nap in your bed. But if we do think this way, then it seems that we
accept that people have a right to independence as the only thing that Ripstein could be said
to have done wrong when he takes a harm-free nap in your bed is that he has interfered with
your independence: that is, your ability to determine what use is made of the things under
your control. However, Ripsteins argument has been convincingly attacked by Colin Bird.98
Bird argues that the law is justified in proscribing Ripstein's harm-free nap because we have a
strong interest in feeling secure, particularly...in the case of those of our holdings that

94
Immanuel Kant famously postulated, but did not prove, that Freedom (independence from being constrained
by anothers choice) insofar as it can coexist with the freedom of every other in accordance with a universal law,
is the only right belonging to every man by virtue of his humanity: Kant, Metaphysics of Morals (1797),
Introduction, 6:237 (trans. Mary Gregor, emphasis in original). (6:237 means page 237 of the sixth volume of
the Prussian Academy edition of Kants works.)
95
Hart, Are there any natural rights? (1955) 64 Philosophical Review 175.
96
In thinking that we can identify an interest with a right, Hart anticipates Razs un-Hohfeldian definition that
X has a right if and only if...an aspect of Xs well-being (his interest) is a sufficient reason for holding some
other person(s) to be under a duty (Raz, The Morality of Freedom (above, n 18), 166). For a discussion of the
difficulties that identifying interests with rights give rise to, see McBride, Rights and the basis of tort law in
Nolan and Robertson (eds), Rights and Private Law (Hart Publishing, 2011).
97
Ripstein, Beyond the harm principle? (2006) 34 Philosophy and Public Affairs 215.
98
Bird, Harm versus sovereignty: a reply to Ripstein (2007) 35 Philosophy and Public Affairs 179.
22

provide us with safe shelter and personal space to which we may repair for the purposes of
seeking privacy and rest:99
The thought that at any moment complete strangers might freely enter and observe these most
intimately personal places will leave most of us profoundly uncomfortable; the fact that they will
do no damage, harbor no ill intentions, or that we would be unaware of their presence would do
little to remove that discomfort.100

So we have no need to invoke the idea of a right to independence in order to account for why
the law proscribes Ripstein from taking a harm-free nap in your bed. We can account for this
by simply relying on the pragmatic considerations set out in this paper: we are more likely to
do well if we live in a society where we are relieved from the anxiety of wondering whether
our most personal possessions and places are secure from the intrusions of others.

E. Predictability

The fifth argument against adopting the way of pragmatism in deciding crossroads cases is
that doing so would make the outcome of those cases too unpredictable. There are too many
factors for judges to take into account in trying to determine what would make things go best
that we could never be certain what the judge would end up concluding. The fact that my
suggestions as to what the law in various areas would look like if it were restructured along
pragmatic lines are so unusual and surprising may reinforce this argument.
This argument does not really present an insuperable obstacle to our pursuing the way
of pragmatism. Instead, pragmatists should take this argument into account in trying to
evaluate what would make things go best given the high value they place on stability, they
should also place a high value on the legal system of a country working in a predictable way
so as to foster that stability. So if, everything else being equal, pragmatic considerations
indicate that it would be desirable for a legal system to give effect to a particular rule, but
introducing that rule into the legal system by deciding a crossroads case would be a
particularly unexpected or surprising move, then legislation might provide a better option for
making that rule law.

F. Competence

The sixth objection is a familiar one; the courts should not pursue the way of pragmatism in
deciding crossroads cases as they are incompetent to do so. 101 They are simply incapable of
determining - even with the aid of the principles I have laid out above - what would make
things go best. This is in part a result of the difficulty of evaluating the consequences of one's
actions, but also a result of a fundamental narrow-mindedness or lack of imagination on the
part of the judges that makes them oblivious to some of the consequences of their decisions
Two responses can be made to this line of argument. The first is that in terms of
evaluating the consequences of ones decisions, changing the law via the common law has
distinct advantages over other ways of altering the law, in particular through legislation.
Judges who change the law soon get to see the consequences of their decisions in the form of
subsequent cases that are triggered by their decision. This feedback allows the judges to
evaluate whether their change in the law has had beneficial or detrimental consequences
99
ibid, 183.
100
ibid, 184.
101
See Stevens, Torts and Rights (Oxford University Press, 2007), 310-12.
23

and as the change in the law has been effected by adjusting the common law, there is
sufficient flexibility to change the law back should the change prove detrimental (and
changing the law back will not have any adverse effects on the predictability of the law). 102
The wave of litigation triggered by the House of Lords decision in Lister v Hesley Hall
Ltd103 shows this feedback loop in operation. That the judges have not drawn the obvious
lesson from this wave of litigation that the decision in Lister v Hesley Hall Ltd put the law
on vicarious liability on the wrong track but have instead chosen to go even further down
the wrong track104 is neither here nor there. The important fact is that the lesson was there to
be learned.
The second response to the objection that the way of pragmatism should be rejected
because of judicial incompetence is that if the judges do find it difficult to recognise the
consequences of their decisions, that may be because pursuing the way of pragmatism is so
unfashionable at the moment. The judges have simply not been equipped with the skills to
decide cases in a pragmatic way because so far no one has been interested in equipping
them with those skills. With proper training, it may well be that judges would be able to do a
much better job of deciding cases on pragmatic grounds than they are able to at the moment.

G. Effectiveness

The final objection to our pursuing the way of pragmatism draws on something I said earlier:
that some goals can only be achieved through a zealous single-mindedness that focuses
simply on achieving that goal and does not take any other considerations into account. This
point would count in favour of the courts pursuing the way of simplicity in deciding a
crossroads case if it were true that: (1) there is some worthwhile goal G that cannot be
achieved unless all the rules of private law are dedicated to achieving that goal; and (2) all
other worthwhile goals can be achieved through some other means for example, through the
tax system or through the activities of voluntary associations. If (1) and (2) were true, then
things would go best if the courts simply focussed on achieving goal G in their decisions.
Pursuing the way of pragmatism would require the courts to pursue the way of simplicity.
However, are (1) and (2) true? We have been given no reason to believe that they are.
For example, consider three different rules: (a) the rule against touching people without their
consent; (b) the rule against making people think they are about to be touched without their
consent; (c) the rule against acting in ways that foreseeably expose other people to a risk of
suffering physical injury. These three rules, when they apply for your benefit, protect three
distinct interests of yours: (i) your interest in being able to determine who touches you; (ii)
your interest in being free from anxiety that people are about to touch you; (iii) your interest
in not suffering material harm to your body. There is no reason to think that private laws
ability to protect you against suffering harm to interest (i) is impaired by the fact that it is also
concerned to protect you against suffering harm to interests (ii) and (iii). Moreover, it is hard
to see what other means would be available to protect us against suffering harm to these
interests if private law did not give effect to rules (a), (b), and (c). So, in sum, private law is
both capable of multi-tasking and needs to multi-task if various worthwhile goals (such as

102
See, for example, the retreat made by the House of Lords in the 1990s from the wide positions taken in Anns
v Merton LBC [1978] AC 728 on liability in negligence for pure economic loss and for omissions.
103
Above, n 59.
104
See McBride and Bagshaw, Tort Law, 4th ed (above, n 55), 885-86, on recent cases that seem to extend
vicarious liability to situations where an employees job merely gave him an opportunity to commit a particular
tort; and the cases cited above, n 55, creating a new category of vicarious liability where the tortfeasor and a
third party were in a relationship akin to employment.
24

protecting interests (i), (ii), and (iii)) are to be achieved. Single-mindedness would not be a
virtue in private law; it would be a vice.

V. CONCLUSION

To answer the question in the title of this paper, when private law comes to a crossroads
because the law is unsettled or uncertain or indeterminate, there is a right way forward. The
way of pragmatism recommends itself to us as intelligible, workable, and reasonable. While it
may be the case that well-established common law jurisdictions such as England, Australia or
Canada will not encounter many crossroads cases, a more youthful jurisdiction such as Hong
Kong will. I hope to have said enough in this paper to convince academics and judges in
Hong Kong that when such cases arise, the way of pragmatism is the right way forward.