Topic outline

  • General

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    Dear students,

    A warm welcome to QMUL and to the QM+ area of Common Law from Theory to Practice. Below you will find a general description of this module as well as more specific information regarding some of the seminars.  Additional materials and information about the syllabus will be posted shortly. In the meantime, if you seek further information  or wish to consult any aspect of this module, please feel welcome to contact the module convenor: Dr Noam Gur, email: n.gur@qmul.ac.uk

    Module Description: 


    Common law adjudication often appears like a patchwork of decisions with limited overall coherence. Are there any fundamental theoretical principles that can help us gain a deeper understanding of the common law and its workings, both as legal scholars and as practitioners? The central aim of this module is to identify such principles, use them to critically evaluate the common law, and examine how they operate in court cases. The module consists of three parts, as follows.

    The first part looks at the common law from the perspective of political and legal theory concepts such as the rule of law, democracy, separation of powers, and social utility and change. It discusses questions such as: Do common law judges make policy? Is the common law undemocratic? Is the common law able to provide the certainty required for modern commercial life? The learning will include, inter alia, a case study, whereby students will have the opportunity to apply the above themes to a court case of their choice.

    The second part looks at the common law’s operation in a colonial context. Here the common law will be discussed, e.g., as an arena of struggle for emancipation from colonial power, and special attention will be given to the delicate interface between the common law and local norms (such as customary and religious laws) in colonies or former colonies.

    The third part turns the spotlight onto private law as a central area of common law adjudication. It explores questions such as: Is there a unifying theory that can hold together different areas of private law, such as tort, contract, and property law, and, if so, what is that theory? Should common law judges use private law as an instrument for advancing of policy goals, such as social utility or more equitable distribution of wealth, or should they focus solely on correcting wrongs? Graduates of this module will gain a theoretically-informed insight into the common law, which would benefit their work as practitioners and scholars alike.


  • Seminars 4-6: Constitutions and Common Law: Histories, Critiques, Reform

    Seminar Leader: Dr Mohsin Alam Bhat

    Description of seminar series:

    This seminar series critically examines constitutional reasoning and practices in the common law world, particularly in postcolonial contexts. We will explore the colonial antecedents of liberal constitutionalism, the contrasts between “common law constitutionalism” and postcolonial constitutionalism, and the trajectories of constitutional development in the postcolonial world. Through comparative case studies, students will engage with the concept of "transformative constitutionalism" and analyse the role of judicial systems in promoting democratic values and social justice. Finally, we will discuss contemporary pressures of democratic backsliding and consider legal reforms to counter these trends in diverse common law jurisdictions.

    The Seminars:

    Seminar 1: From “Common Law Constitutionalism” to “Postcolonial Constitutionalism”

    This seminar introduces students to the evolving trajectories of constitutional reasoning in common law jurisdictions, examining the historical and theoretical underpinnings of “common law constitutionalism” and the colonial legacies of liberal constitutionalism. We will then focus on “postcolonial constitutionalism,” exploring how formerly colonised nations adapt or challenge these legacies to create more inclusive and context-sensitive frameworks.

    Seminar 2: Legitimacy and Stability in “Transformative Constitutionalism”

    Building on the first seminar, this session investigates the influence of legitimacy, stability, and justice on the judicial roles within former colonies. It focuses on the courts' roles in advancing socio-economic rights and explores the concept of “transformative constitutionalism,” examining its potential and limitations in democratising these societies and addressing social inequalities.

    Seminar 3: Recrafting Constitutions Against Democratic Decline

    This seminar addresses current challenges related to democratic decline and authoritarianism within the common law world. We will consider how features of British and common law constitutionalism might exacerbate these developments in certain jurisdictions and explore comparative constitutional reforms aimed at bolstering democratic resilience.

    Indicative sample reading list:

    • Boaventura de Sousa Santos, Sara Araújo, and Orlando Aragón Andrade (eds), Decolonizing Constitutionalism Beyond False or Impossible Promises.
    • Sigrid Boysen, ‘Postcolonial Global Constitutionalism’ in Handbook on Global Constitutionalism (Edward Elgar Publishing 2023) 166.
    • Sujit Choudhry, Michaela Hailbronner, and Mattias Kumm (eds), Global Canons in an Age of Contestation: Debating Foundational Texts of Constitutional Democracy and Human Rights (Oxford University Press 2024).
    • P.C. Davis, ‘Post-Colonial Constitutionalism’ (2019) 44 NYU Rev L & Soc Change 1.
    • Philipp Dann, Michael Riegner, and Maxim Bönnemann (eds), The Global South and Comparative Constitutional Law (Oxford University Press 2020).
    • Charles Manga Fombad (ed), Separation of Powers in African Constitutionalism (Oxford University Press 2016).
    • Berihun Adugna Gebeye, A Theory of African Constitutionalism (Oxford University Press 2021).
    • Michaela Hailbronner, ‘Transformative Constitutionalism: Not Only in the Global South’ (2017) 65 Am J Comp L527.
    • Swati Jhaveri, Tarunabh Khaitan, and Dinesha Samararatne (eds), Constitutional Resilience in South Asia.
    • Gary J Jacobsohn, The Wheel of Law: India's Secularism in Comparative Constitutional Context (Princeton University Press 2009).
    • Duncan Ivison, ‘Decolonizing the Rule of Law: Mabo’s Case and Postcolonial Constitutionalism’ (1997) 17 Oxford J Legal Stud 253.
    • Ranabir Samaddar, ‘Colonial Constitutionalism’ (2002) 3 Identity, Culture and Politics 1.
    • Kai Möller, The Global Model of Constitutional Rights (Oxford University Press 2012).
    • Thomas Poole, ‘Back to the Future? Unearthing the Theory of Common Law Constitutionalism’ (2003) 23 Oxford J Legal Stud 435.
    • Karl E Klare, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 SAJHR 146.
    • Daniel Bonilla Maldonado (ed), Constitutionalism of the Global South: The Activist Tribunals of India, South Africa, and Colombia (Cambridge University Press 2013).






  • Seminars 7-9: Private Law Theory in the Common Law: Method or Madness?

    Seminar Leaders: Dr Jeevan Hariharan and Dr Tony Zhou 

    Description of seminar series:

    This series of seminars unpacks the way that common lawyers approach the task of theorising private law. Private law, the part of the law which governs relationships between individuals (spanning areas such as tort, contract and property), is central to all common law systems. But there is strong disagreement over how best to explain and justify not only different aspects of private law but private law as a whole. After a brief overview of the dominant views in contemporary private law theory, this seminar series seeks to engage with deeper questions about the task of theorising private law.  We will consider to what extent it is helpful or even possible to provide a grand or unifying theory of private law or the areas of law that comprise it.  And we will think more broadly about whether common lawyers have the right tools to answer the fundamental questions about private law which they are asking.  

    The Seminars:

    Note that the below is a rough split only. We envisage that the content for the first seminar may be a little shorter than a full seminar, whereas the content of the second seminar will be longer.

    Seminar 1: The Lay of the Private Law Theory Land

    An introduction to private law theory in the common law world.

    Seminar 2: Dissecting Private Law Theory—Madness in the Method?

    How do common lawyers approach private law theory? Part 1: Interrogating the justificatory enterprise and the idea of a ‘grand theory’

    Seminar 3: Dissecting Private Law Theory—Method in the Madness?

    How do common lawyers approach private law theory? Part 2: External and critical perspectives on methodology

    Indicative sample reading list:

    ·      Steve Hedley, ‘Private Law Theory: The State of the Art’ (2021), available at: https://papers.ssrn.com/abstract=3917777

    ·      Felipe Jiménez, ‘Justifying Private Law’ forthcoming in Paul Miller and John Oberdiek (eds), Oxford Studies in Private Law Theory, Vol. II, available at https://papers.ssrn.com/abstract=3825306   

    ·      Scott Hershovitz, ‘The Search for a Grand Unified Theory of Tort Law (Review of Private Wrongs by Arthur Ripstein)’ (2017) 130 Harvard Law Review 942.

    ·      James Goudkamp and John Murphy, ‘The Failure of Universal Theories of Tort Law’ (2015) 21 Legal Theory 47.

    ·      Nathan B Oman, ‘The Temptation of Cosmic Private Law Theory’ (2021) 66 The American Journal of Jurisprudence 395

    ·      Sarah E Hamill, ‘Review of S. Degeling, M. Crawford and N. Tiverios (eds), Justifying Private Rights’ (2022) 85 Modern Law Review 833.

    ·      Paul B Miller and Jeffrey A Pojanowski, ‘The Internal Point of View in Private Law’ (2022) The American Journal of Jurisprudence, advance access copy available at: https://doi.org/10.1093/ajj/auac008

    ·      ‘Theoretical frames’ in Martha Chamallas and Jennifer B Wriggins, The Measure of Injury: Race, Gender, and Tort Law (NYU Press 2010).

    ·       Lucinda M Finley and Martha Chamallas, ‘Introduction’ in Lucinda M Finley and Martha Chamallas (eds), Feminist Judgments: Rewritten Tort Opinions (Cambridge University Press 2020).