England's dreaming equity, trust and conscience - alastairhudson.com

Thus, all of the wife’s property passed to her husband. The rules on realproperty were more complex. Hence the popularity of family settlements topreserve the rights of women in rich families before marriage. (See, for example,Cretney, Family Law in the Twentieth Century (Oxford University Press, 2003), p.91 et seq.) AsDicey put it: the‘daughters of the rich enjoyed … the considerate protection of equity, thedaughters of the poor suffered under the severity and injustice of the commonlaw’(Dicey, Lectures on the Relation between Law and Public Opinionin England During the Nineteenth Century (2 nd ed., 1962), p.383).Now this does not mean that all taxonomies will lead to this conclusion. Whatis important is that taxonomies are, first, locked in time and therefore not inthemselves susceptible to change; and, secondly, that they do not permit anyplea by an individual that her circumstances are different.In a chaotic world it is important to be able to react to changeChaos and relativityIn a chaotic world it is important to be able to react to change.Simply reading the rules out of a big book of rules requires no more brainsthan does filling a kettle. It is designing those rules and being capable ofapplying those principles suitably to any given set of facts which requires moresubtle thought.We have turned from “the law of restitution”, with its difficulties over theword “unjust” and its “taxonomies” into the law of “restitution of unjustenrichment” to the “law of unjust enrichment” and the concept of “analogywith mistake”. The underpinning concepts are constantly consumed bythemselves, until all that is left is the metaphysical notion that “unjustenrichment” operates “by analogy with mistake”. Truly, restitution will eatitself. But always pretending that it is rational, predictable and conforming toa taxonomy.We live in an infinitely complex world. Our thinking must be flexible enoughto cope with complexity and change. Restitutionists and similar sorts ofpositivist are still stuck in the world of ‘atoms as building blocks’, whereas therest of us have got used to the presence of chaos.At the most basic level, Einstein’s theory E=MC 2 is a proof of change. It is aproof that everything is relative to everything else.Taxonomy is so masculine19www.alastairhudson.com | © professor alastair hudson