The first issue of the Modern Law Review in 1937 carried an article by Richard O'Sullivan KC entitled ‘A scale of values in the common law’.Footnote ¹ In his corpus of writings,Footnote ² O'Sullivan made two central claims. The first was that there was a scale of objective values which gave shape to the common law, and which promoted human flourishing. The second was that the common law was superior to the civil law because, by not relying on Roman law sources, it had been better able to give effect to the civilising elements in Christianity.

Nicholas McBride begins the first volume of his two-part work, The Humanity of Private Law, by stating that he wants to explore whether Richard O'Sullivan was right to claim that ‘The Common Law of England is one of the greatest civilising forces in the world’ (p 1). In order to do that, McBride has to enable his readers to see the wood for the trees. His topic is English private law. Like Ronald Dworkin's super-human judge, Hercules, McBride has set himself the challenge of making sense of the confusing forest of common law judgments across the areas of tort, contracts, trusts, and restitution, companies, marriage, and gifts and wills.

Like Hercules, McBride is not looking to account for each and every decision every made by a judge, no matter how myopic, misinformed or misdirected (p 39). Instead, McBride is seeking, as Dworkin urges Hercules to do,Footnote ³ to provide an explanation for the private law rules of the common law which balances Dworkin's twin criteria of justification and fit (p 31, p 240). McBride offers his readers what he regards as the best possible explanation of as many as possible of the common law's leading cases in private law (p 27).

McBride takes tort law, on which he has co-authored a textbook (now in its 6^th edition) as the area of law with which to illustrate his thesis, before expanding his analysis to cover the other areas of English private law. In such an undertaking there is always room to contest McBride's reconstruction of particular details: is Hedley Byrne v Heller Footnote ⁴ really about the courts trying to get round the doctrine of consideration or is its motivation an attempt to avoid the doctrine of privity of contract? (pp 236–237), is McBride too hasty in his assertion that the defendant's liability – in the notoriously difficult case of Kelly v Solari Footnote ⁵ – to repay money mistakenly paid must not be wrong-based? (p 55), does McBride take insufficient account of the effect the availability of insurance has had on the imposition of tortious duties? (p 247). But they are only quibbles. McBride's reconstruction of the common law from predominantly English sources is very largely successful even when his assessments regarding rights (pp 43–54) or unjust enrichments (pp 194–198) are controversial. The Humanity of Private Law is a tour de force of legal interpretivism which Dworkin would have lauded.

McBride first clears the field by dismissing the explanations of private law offered by the law and economics movement (pp 7–11), legal moralism (pp 15–26) and Kantianism (pp 11–15), though he continues to battle against the Kantian vision throughout the book (pp 256–264).

McBride dismisses law and economics on the basis that since wealth maximisation does not correlate to social utility (that a rich man is willing to pay more for x than a poor woman is no indication of whose life will benefit more from acquiring x), wealth maximisation is not a value worth pursuing (p 11).

McBride rejects Kantianism because, he says, we do not value independence per se, but rather independence because of other goods that independence enables us to pursue (pp 14–15). Kantianism fails because it fails to specify those goods to the extent that McBride contends his theory can.

McBride's reason for refusing legal moralism is more curious. McBride distinguishes between the idea of morality as a code (a list of actions that are morally obligatory or morally forbidden) and the idea of morality as a map (in which ‘certain experiences and activities and choices and institutions and people and places and achievements’ (p 22) are ‘ethically important or significant’). In McBride's view, the idea of morality as a map is to be preferred (p 25). Moral considerations are therefore, like Dworkin's principles, not simply applicable or not applicable but are to be weighed against one another in order to identify what is the most fitting course of action. It is not clear, however, that we have to choose between codes and maps. Lon L Fuller pointed out that there is a distinction between the morality of duty and the morality of aspiration.Footnote ⁶ That a map is a better analogy for the morality of aspiration than a code seems obvious. But is far from clear why the map for the morality of aspiration cannot build on the code which establishes the morality of duty, or rather that a code cannot be derived from a morality of aspiration as a baseline for social life. McBride's concern seems to be that ‘the idea of morality as a code always carries with it the danger of embittering social relations as under this idea virtually any dispute where I want you to do x and you do not want to do x can be ramped up into a moral dispute where I argue that you are morally required to do x for me’ in order ‘to give me my due’ (p 24).

Building on John Finnis's account of human flourishingFootnote ⁷ and with insights from sources as varied as Wittgenstein, Adam Smith and Ursula Le Guin, McBride sets out the vision which he thinks is the implicit motivation and the underlying justification for the common law's private law rules viewed in their best light. This vision McBride calls the ‘RP’. RP stands for Received Picture (because it is the one Westerners have imbibed with their mother's milk) and for Reflective Picture (because it is the one Westerners would be inclined to adopt were we to engage in Rawls’ practice of seeking a reflective equilibrium) (p 82). The RP has, on McBride's account, 15 features which set out the conditions for bodily flourishing, mental flourishing, ‘heart flourishing’ (ie fulfilment in relationships, self-worth, and meaningful desires), flourishing through accomplishments, and enjoyment of stable external circumstances which mean that one lives in a secure society, a caring society, free from anxieties and in which those one cares about also flourish (p 107). It is a vision which the common law has acquired from Christian judges and legal theorists, through, amongst others, Christopher St German, Sir Edward Coke, Richard Hooker, John Selden, Matthew Hale, Lord Mansfield, William Blackstone, FW Maitland and Lord Denning, a roll call McBride describes as ‘virtually every significant figure in the shaping of English private law’ (p 264 fn 134). Nonetheless, the RP is a capacious vision, allowing each person to determine for themselves ‘what is … the most rational long-term plan of life given reasonably favourable circumstances’ (as Rawls would put it, p 110),Footnote ⁸ and encapsulating insights from hedonistic theories, desire-fulfilment theories, objective list theories and capability theories of human flourishing (pp 112–114). One wonders here whether McBride's definition of human flourishing (like Finnis's basic good of being in harmony with the ultimate source of all reality) operates at such a high level of abstraction as to be indeterminate.

McBride thinks the implementation of the RP through the common law is in decay, not because contemporary accounts of human flourishing have departed from the RP (a trope McBride describes as often asserted but ‘never actually established’ (p 108)) but because the status of the common law as a forum for dispute resolution by the application of commonly acknowledged principles has been displaced (p 252) as governments have abandoned their commitment to delivering justice for all (p 254). He does not, however, discuss the alternative (though not necessarily contradictory) thesis that the English common law is becoming increasingly dominated by the values of neo-liberalism (as the higher courts become the privileged domain of large corporations and oligarchs).

If McBride is right that a particular vision of human flourishing has animated the English common law, then one obvious question that arises is whether, as Richard O'Sullivan believed, the Napoleonic Code and civilian systems derived from it pursue a different vision of human flourishing. The law and economics movement allowed for the possibility that more than one configuration of rights and duties could be optimal. Does the Napeolonic Code pursue a different vision of human flourishing or the same vision of human flourishing by different means? A related question is whether the account of human flourishing McBride identifies is a shared heritage of all common law systems or whether, under the influence of Oliver Wendell Holmes, Karl Llewellyn, and others, the American legal system's vision of life, liberty and the pursuit of happiness is different from the English one.

McBride is not finished yet. His book makes the claim that the RP vision of human flourishing which the common law offers to its citizens misunderstands what it truly means for human beings to flourish and ‘inevitably condemns certain classes of people to existences that cannot be described as flourishing’ (p 173 fn 85). English private law is at best ‘a noble failure – it aspires to promote human flourishing, but is betrayed … by its failure to understand what authentic human flourishing involves’ (p 1). In Part II of his project he promises to develop and defend these claims. The Humanity of Private Law – Part I is, in essence, a work of descriptive jurisprudence (though avowedly evaluative (p 32)), attempting to make the best sense of the rules of English private law as they are today. Part II will turn to the even more ambitious task of prescriptive jurisprudence, attempting to re-think private law in the light of a new vision of human flourishing. Having achieved his Herculean labours, McBride will next seek to emulate Moses.

McBride is to be commended for the extent to which he has succeeded in his task in The Humanity of Private Law – Part I. His book deserves to be required reading for anyone seeking to think widely and deeply about the motivating spirit of the common law. For readers anxious to read Part II, it is due to be published in mid-2020.