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The overlapping of legal concepts: a legal realist approach to the classification of private law

Salmons, David (2011)
Ph.D. thesis, University of Birmingham.

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Abstract

The main aim of this research is two-fold; firstly, these chapters will seek to demonstrate the unreliability of theoretical or abstract approaches to legal reasoning in describing the law. Secondly, rather than merely providing a deconstruction of previous attempts to classify private law, the chapters attempt to construct an overlapping approach to classification. This represents a new way of classifying private law, which builds on the foundations of the lessons of legal realism and explains how classification can accommodate overlaps to assist in identifying the core elements of private law reasoning. Following the realist tradition, the thesis argues for narrower formulations of the concepts of property, contract and tort. It is then argued that within these narrower concepts, the law is made more predictable and clearer. Importantly, adopting the overlapping analysis, we can explain the areas that we have removed from property, contract and tort as overlaps with these core concepts. The purpose is to recognise that legal concepts can be best understood as links between facts and judicial decision making, and the best way to achieve this is to reject discrete categorisation and, instead, to recognise the overlapping of legal concepts.

Type of Work:Ph.D. thesis.
School/Faculty:Colleges (2008 onwards) > College of Arts & Law
Department:Birmingham Law School
Subjects:K Law (General)
KD England and Wales
Institution:University of Birmingham
ID Code:3227
This unpublished thesis/dissertation is copyright of the author and/or third parties. The intellectual property rights of the author or third parties in respect of this work are as defined by The Copyright Designs and Patents Act 1988 or as modified by any successor legislation. Any use made of information contained in this thesis/dissertation must be in accordance with that legislation and must be properly acknowledged. Further distribution or reproduction in any format is prohibited without the permission of the copyright holder.
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