I was at an event for restitution lawyers the other day, when one of the academics present made a good point. She said that she thought restitution lawyers had “tidy minds”. They wanted the law to be tidy. I think she is absolutely correct. The desire is that like cases be treated alike, regardless of whether they arise in equity or the common law. If the basic triggers of various causes of action are the same, then they should be grouped together, not scattered in 7 random places and random textbooks.
I do have a very categorical mind. When I teach, I like to provide my students with little flow charts which show how the law works. If it can’t be reduced to a one page flow chart, there’s something wrong with it and it needs to be cleaned up. I like to group similar beasts together, and I don’t particularly care whether they come from equity or the common law. I care about what they do, and what they mean for the plaintiff and defendant.
Unfortunately, outside of my own head, I am not at all tidy. I mentioned last year that I purchased a labelling machine in an effort to get the piles of paper off my desk and into neat labelled folders. I developed a beautiful filing system for most things – it was very logical. Unfortunately, as I sit at this desk here, I am surrounded by my usual piles of paper. Some are even on the floor, in the lounge and in the kitchen. Perhaps it’s a form of entropy – gradually, over time, my papers disperse themselve throughout the room, and then throughout the house. My systems all work beautifully in theory but when I put them into practice…they work for a few weeks or a few months…and then the wheels fall off. Then I have to have a big cleaning binge, and the whole system is reformed again for a while. My spirit is willing to create order, but my flesh is weak…
It is even worse when you have to share your system with someone else. I reorganised the pantry about 2 months ago. It has now degenerated into a shambles again. My husband has put things in the wrong place. Given that he’s been good enough to put away the shopping in the first place, I don’t think it’s a good idea (or very nice) to bug him about it. However, it shows that even when you have a principled system, another person might have different ideas on how it should best be used, particularly if you didn’t explain the principles to him in the first place, but just expected him to notice all the rice was in the back right-hand corner. And he really can’t be blamed for the fact that I bought a 2 kg bag of rice which doesn’t fit in the back right-hand corner.
I have decided that private law is like my pantry, except that there are hundreds and thousands of other people stacking groceries in it. If you want some kind of order, it’s good to have labels on the shelf for other people to follow, so that at least the rice at least ends up vaguely in the same place, even if it’s not exactly where you would have placed it. Sometimes you might get a case which is like my 2 kg bag of rice – it just doesn’t fit the structure. But nonetheless, a system does make it easier for others to understand what is going on, or to say that a case is altogether wrong when the rice ends up in the fridge, not the pantry.
The difference between my pantry and the law, of course, is that nothing much hinges on whether or not someone can easily find where the rice is. However, the legal system depends upon a system of advisors (barristers and solicitors) being able to predict where a case will end up, or whether it will be thrown out entirely.
In the case of Australia, it’s a bit like the system was devised in the 1800s when the principles of packing away one’s groceries were entirely different. Perhaps one could even say the system was originally a bit like one of those ultra Orthodox Jewish kosher kitchens where the milk and the meat never mix, and there are separate cupboards, fridges and stoves for the cooking and storing of each. Even though there is no reason not to mix milk and meat these days, the structure still permeates the whole kitchen, and gets in the way of organising things properly. But judges like Gummow J and Heydon J insist that we must keep the division between milk and meat in our pantries, even though this leads to confusion, anomalies and duplication. (Ha ha ha! I bet they’ve never thought of themselves as kosher before.)
So, even though my systems always end up moving towards chaos, my pantry analogy tells me that I think some kind of order is very important. At the moment, I am working on developing two systems. The first system is a scheme of when accounts of profits should be available for breach of contract. That is working very nicely, thank you. It looks very neat and I have managed to reduce it down to a one page flowchart. The other system…well, that’s my filing system. It’s not working so well. There are Christmas cards and photo paper interleaved with the pile of restitutionary damages cases (seriously, I’m looking at them right now). One day, just one day, I might be able to get one of my systems to work outside of my head!