The Law of Private Nuisance.

• Jurisdiction: Australia
• Author: Priel, Dan
• Date: 01 August 2015

Land use priorities and the law of nuisance

The Law of Private Nuisance

By Allan Beever (Hart Publishing, 2013).

price: 38.00 [pounds sterling]. ISBN: 9781849465069

CONTENTS I Introduction II Beever's Methodological Commitments A What Makes an Explanation Internal? B The Externality of Beever's Approach III Evaluating Beever's Views on Their Own A Describing the Relevant Activity B Internal Incoherence C The Problem of Presentation D Implausible Outcomes E Implausible Theory IV Nuisance Law for the Age of Statutes V On the Role of Legal Academics I Introduction

Some 30 years ago Ernest Weinrib embarked on a highly ambitious research program. Weinrib's provocative contention was that all of 'private law' (1) could be explained in terms of a single normative idea: corrective justice. Though his abstract arguments claimed to be internal to the law, it was mostly based on readings (contentious, I think) of the works of Aristotle and Immanuel Kant, neither a philosopher until then thought to have had much influence on the development of the common law. And though Weinrib claimed to have captured the idea of private law as a whole, he focused almost exclusively on tort law, and within tort law almost exclusively on negligence. Weinrib explained that 'liability for negligence poses a particularly severe challenge' for his formalist conception of corrective justice. Therefore, '[i]f formalism illuminates negligence law, it presumably illuminates less problematic bases of [private law] liability as well'. (2) Despite this assurance, Weinrib's limited focus left him open to two kinds of challenge. One was that even if providing an adequate explanation of negligence, he was wrong to claim that corrective justice provides a unifying principle for all of private law. The second challenge was that even with regard to negligence his account could retain whatever plausibility it had only by remaining at Olympian heights of abstraction, but could not adequately explain many more fine-grained features of the law.

Much of Weinrib's work in subsequent years has been dedicated to restating and substantiating his views, as well as extending them to other areas of private law. (3) In a series of writings, Allan Beever, probably Weinribs most committed disciple, (4) has attempted to do the same. Echoing Weinrib, Beever stated in his first book that in his view 'at least almost all of the law of tort, and the private law more generally, is based on corrective justice'. (5) He has since attempted to make true of this claim. Thus, a recent book, Forgotten Justice, (6) is in part an attempt to bolster the idea that all parts of private law, including property law, (7) can be grounded in commutative justice. (8) In other writings, Beever has attempted to show that what Weinrib considered at the highest level of abstraction is in fact confirmed when one zooms in and examines legal doctrine (slightly) more closely. After dealing with negligence in an earlier book, (9) Beever has now turned his attention to other torts. His book The Law of Private Nuisance (10) should be understood as part of that latter effort.

I do not think that Weinribs research program has much to commend it and have found Beever's earlier efforts to defend it largely unsuccessful. (11) It is therefore perhaps unsurprising that I was similarly unpersuaded by his suggestions on how to 'start again' with the law of private nuisance. (12) The rest of this essay seeks to explain why. I start by examining Beever's methodology. Beever aligns himself with a popular approach to thinking about legal doctrine, according to which an adequate account of legal doctrine must be 'internal' to the law. I argue that despite insisting on the importance of internal explanations, Beever is unclear about what he means by it. I consider one likely candidate for this internality--that the explanation fit legal doctrine--and show that Beever's views are very different from legal doctrine. I then try to identify a possible different account of internality at play in Beever's work, but argue that to the extent that one can tease out such an account from his works, it is so broad that all explanations of law could count as internal in that sense. I argue instead that on a plausible understanding of what counts as an internal explanation of law, Beever's account is completely external. In Part II, I turn to consider the substance of Beever's views. I argue that there are many difficulties with his views that render his position impossible to apply in practice. In Part III, I add that in any case his account is largely irrelevant to understanding or improving nuisance law today because Beever's approach leads him to confine his discussion to the law of nuisance in isolation of its normative surroundings. I contend that these days it is impossible to understand the role of nuisance law without taking into account the extensive normative framework surrounding it. Because Beever does not, he bases his account on unrealistic examples of nuisance cases, which are of very little relevance to the real world today. This leads me, in the final Part of the essay, to add some remarks on the role of legal academics. I suggest that one possible source of the problems in Beever's account is that his conception of the university is more than a century out of date. Instead, I suggest legal academics try to model their work on the university of our times.

II BEEVER'S METHODOLOGICAL COMMITMENTS

Right at the outset of his book Beever says that in understanding the law 'we are looking for an explanation of the law that takes seriously the law's own demand that its decisions be justified and be justified in terms of the legal materials'. (13) In saying this Beever is in line with many contemporary writers who have stressed that any valid explanation of the law must adopt the law's 'self-understanding' or its 'internal point of view'. (14) Despite their prevalence, such claims are more often asserted rather than explained and are often left obscure. What, for example, does it mean to take seriously an inanimate institution's 'own demand'? More prosaically, how are we to determine what makes a certain explanation internal and another external? Beever, for example, seems to think that ideas found in the work of Kant are immanent in the law, even though they are rarely mentioned in common law legal materials; on the other hand, despite countless references to it in the cases, he thinks that policy is extrinsic to the law. What is his basis for these judgements?

Part of the problem is that for the distinction between internal and external explanations of law to make any sense it must be clear what an explanation should be internal to or external of. This is rarely clearly specified. As I will attempt to show, when we try to answer this question in relation to Beever's book, his claims become difficult to sustain. Though this Part focuses on Beever's work, I hope it will prove to be of broader significance. Precisely because of the centrality accorded to explaining the law from the internal point of view, and especially because Beever follows here in the footsteps of Weinrib's very influential account, there is value in addressing this matter. For I believe the methodological problems I identify in Beever's work are indicative of broader problems with 'internalist' accounts of law. (15)

A What Makes an Explanation Internal?

Though I will consider Beever's views in detail later, at the moment it will suffice to present the essence of his account, which is that the law of nuisance is concerned with 'the prioritising of property rights'. (16) In a slightly longer formulation, Beever's central argument is that 'nuisance is concerned with prioritising property rights. A nuisance occurs when the defendant uses land in a way that interferes with the more fundamental use of the claimant's. The issue is not whether the claimant is personally bothered by any of this'. (17)

Beever begins the book by informing his readers that there is a view of private nuisance, he calls it 'the conventional view', that 'the overwhelming majority of lawyers adhere generally to'. (18) Despite its prevalence, Beever thinks it is a 'collapsing building' and whatever remains of it must be completely torn down. In its stead he suggests a new beginning 'with new foundations. (19) Is this failed conventional explanation limited to commentators who do not understand what they see in the cases? Not according to Beever. He summarises the conventional view as described in one textbook, and says: 'The [textbook] author's task is to depict the law as it is presented in the cases. The author succeeds. But what he succeeds in depicting is a failure'. (20) With characteristic modesty (21) Beever then proceeds to present an account that, apparently for the first time, will make sense of the law: 'The problem is not that the law does the wrong thing. The problem is that it does not understand what it is doing'. (22) When translated to less mysterious language, what Beever claims is that the account he offers has escaped all lawyers, all commentators, and even all judges. Beever's new beginning, then, aims to capture what the law actually is and to abide by the constraint that 'the justification [of the law] must be in terms of the law itself, at least in the sense that the reasons that justify a decision ought to be found in the judgment itself, (23) despite the fact that the law on this matter does not understand itself.

How is this to be done? Beever acknowledges that for his view to be internal to the law 'what must be clear is that the principle [that the law of nuisance prioritises property rights so that more fundamental uses of land trump less fundamental uses] ... must be reflected in the law somewhere'. (24) And yet, Beever does not provide a single quotation from a single case to directly support his claims about what nuisance law is about. At...