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The Idea of Private Law
... Within the same state framework, but in interactions between individuals, the relationship between subjects is normally person-person or person-company, under the idea of private law. In turn, the differences of interests between the partiesdefendant/plaintiff-are resolved by state judges, following the positive legal framework of each country (Weinrib 2012). ...
In this article is analysed how is the emergence of rights in favour of people with less power in the global context probable and is explored what could be the most integral socio-legal approach to discuss this issue, related with the so-called problem of disregard. The analysis took as a case study the figure of the European Works Councils and led to the conclusion that the emergence of rights in that event was achieved through the mediation of a structure that comprises three components: (1) the declaration of a common aim or a kind of program, and (2) specialised structures that (3) perform specific functions. In the paper, this is called “program-driven and structurally mediated functions.” Although the different theoretical approaches to legal globalisation address some of the components of this structure, the theory of the International Public Authority provides a systemic vision that allows addressing the problem in a more comprehensive and articulated way.
In this paper I will claim that methodology of law and economics should be changed from adopting economic analysis of law, namely implementing price theory and welfare economics (economization of law) to the scientific efforts aiming at an inter- disciplinary project embracing law and economics as well as jurisprudence. The basis for such a project is purported by the Coase theorem, but may also be found in writings of Hayek and "old institutionalists", such as Veblen, Hale and Commons. The purpose of this paper is thus twofold: firstly, to present briefly the most power- ful and popular version of law and economics being at the same time influential leg- al theory- the Chicago school. Secondly, to analyze the existing alternative ap- proaches to economics of law, related to Austrian school (Hayek), "old institution- al" economics (Commons) and transaction cost economics (Coase).
this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher, bepress, which has been given certain exclusive rights by the author. Prologue In this quite lengthy and, no doubt for some, awkwardly structured, article, I take up what American tort law calls the "incomplete privilege" that arises when people are forced by circumstances of "necessity" to harm or consume the property of others. I focus on the much-written about case of Vincent v. Lake Erie Transportation Co. There a huge storm prevented a ship from leaving a dock where its cargo had just been unloaded. The captain reasonably had the crew secure the ship to the dock, and although the ship was saved, as a result of the storm the dock suffered some damage. In 1910, the Minnesota Supreme Court held the ship owner strictly liable for the damage done to the dock. In the Restatement of Torts, this problem came to be analyzed as one in which the ship captain is first understood to have had a privilege to remain at the dock, even if that otherwise would have been a trespass. But, unlike, say, the full privilege of self-defense, the privilege arising from "necessity" is said to be incomplete, creating an obligation of the ship owner to compensate the dock owner.
There are two possible ways to understand form and substance in legal reasoning. The first refers to the distinction between concepts and their applications, whereas the second concentrates on the difference between authoritative and non-authoritative reasons. These approaches refer to the formalistic and positivistic conceptions of the law, the latter being the author's point of departure. Nevertheless, they are both helpful means of analysis in legal interpretation. Interpretation is divided into formal and substantive justification. They have certain functions and they are utilized in interaction. Authoritative reasons and formal reasoning constitute the necessary point of departure. However, substantive reasons are also necessary in order to justify choices included in interpretation. In addition to formal and substantive reasoning, the role of legal concepts is analysed.
This paper integrates the worlds of Harry Potter and civil liability, in the context of exploring the ways in which the integrity of young people - their sense of self - deserves both respect and protection. By intertwining the two realms, each structured by its particular norms and narratives, the exploration emphasises the intricate connections among personal vulnerability, dignity and autonomy. Notions central to an understanding of the individual in the private law of civil liability, these aspects of the individual are just as firmly situated in Harry Potter. Thus, as the books illustrate how people, institutions and experiences shape the period that leads from childhood to adulthood, they reveal a complex yet necessary coexistence of dependence and self-reliance. So too, when the law deals with decision-making by young people, the difficulties with assuming or requiring autonomy against a backdrop of adolescence are stark. Often hidden from view in legal, as opposed to literary, narrative, the necessary tension between individual vulnerability and independence - given contour by the relationships in which the young person participates - is brought to light by bringing together the stories of Harry Potter with those of adolescent decision-making in law.
There are many signs that contemporary European contract law is charged with regulatory tasks. Can the DCFR model rules be employed when the regulatory nature of contracts becomes apparent? To answer this question, the article uses the example of network access contracts in the energy sector and compares the enforcement mechanisms adopted in sector-specific regulation with the remedies laid down in the DCFR. The main finding is that cross-fertilizations between sector regulation and general contract law do occur, but the DCFR does not provide satisfactory answers to the issue of balancing the private interests of the parties and the public interests related to the competitive dynamics of markets. It is suggested that new principles are needed, which explicitly include an assessment of the impact on regulatory goals among the requisites for the application of contract remedies.
Unlike tort and contract, unjust enrichment law has hitherto lacked a stable framework for the quantification of gain-based awards. This piece sets out to provide an integrated six-stage quantification framework which can be applied to all monetary restitutionary claims. These stages comprise: (1) The identification of the relevant benefit (2) The application of an evidential (defeasible) presumption of market-valuation to it (3) Measurement of its value at the time it was received (4) Establishing a factual causal connection between the benefit and the relevant injustice; and that it was appropriately (as a matter of judicial policy) attributable in law to that injustice (5) Addition of consequential gains (subject to the same requirements of causation and legal attribution, but not subject to any conceptually distinct remoteness of gain limitation) (6) Deduction of gains received by the claimant which are directly attributable to the relevant transaction; and of losses which the defendant has sustained in good faith which are again directly attributable to the transaction between the parties. Although the amount of relief available to a plaintiff will differ according to the relevant category of case, this framework will, it is argued, help to stabilise what has historically been a randomised and often unpredictable approach to the quantification of awards.
Over the past century, tort doctrine has coalesced around a robust law of negligence, anchored in both contemporary concerns about fairness and considerations of loss spreading and safety promotion. Changes in culture, the professions, civil procedure and evidence law, as well as the development of liability insurance, have made it easier and more natural for accident victims to sue. Work, home, and leisure activities have altered dramatically, thereby significantly changing the nature of the accidents that Americans now suffer. Some injuries were removed from personal injury law, and tort failed to take hold in certain other areas. The upshot is that the size and nature of the personal injury law system in the year 2000 differs enormously from the system in place in the year 1900. Nevertheless, many of the shortcomings of personal injury law in 1900 still plague tort law's operation today.
This article provides a framework for addressing concerns about retributive justice in states recovering from national traumas and it uses South Africa's Truth and Reconciliation Commission (TRC) as its focal point. The article begins by providing an overview of the origins and operations of the TRC, and then explores several conceptual and legal challenges that the TRC faced. These challenges are important to understand for two purposes: first, they highlight the probable criticisms that might emerge as other recovering states consider the particularized amnesty proceedings that were the heart of the TRC; and second, they provide a particular illustration of what I call the social expressivist opposition to the TRC. The paper then engages the TRC's justification of the practice of particularized amnesty, a justification that emanates from the TRC's account of truth, reconciliation, and justice. Here, I scrutinize not only the theory of justice propounded by the TRC, but also the theory of restorative justice offered by some of the TRC's most astute defenders. This examination reveals deficiencies that should renew our interest in the conceptual resources inhering in retributivism as a theory of criminal justice. There is an obvious tension between the TRC's defence of particularized amnesty and the challenges launched against it by those who adhere to the social expressivist view. The paper thus seeks to mediate this conflict by outlining the confrontational conception of retributivism - an account that I offer to answer not only why retribution for wrongdoing is internally justified and obligatory, but why it is also the sole province of the state in modern society. The theory offered here, which is premised on familiar notions of equal human worth and liberty under law, assures that in the face of known wrongdoing, the state responds as our agent to diminish the evidence of unequal liberty claimed by perpetrators through their actions. One conclusion I draw from this theory is that retributivism, once properly understood, need not be viewed as inextricably dependent upon traditional concepts of proportionality. Thus, under certain circumstances, a retributivist vision of punishment can find an authentic expression in particularized amnesty proceedings. In particular, I indicate how the confrontational conception of retributive justice differs from others insofar as it limits what kind of leniency the state may demonstrate in response to gross violations of human rights. In short, the paper defends the thesis that particularized amnesty proceedings are compatible with retributive justice properly understood.
Private law is no longer primarily governed by rules produced by national legislatures and courts. The emergence of new types of rules, emanating from both international (including European) and private law makers, sits uneasily with traditional theory that is largely based on the monopoly of national states in making law. The main argument of this contribution is that this prompts the need for a fundamental rethinking of our idea of private law sources. After an overview of the multiplication of sources that we have witnessed over the last decades, two questions are discussed. The first is whether we are able to identify a ‘best’ level of regulation for a certain topic. It is proposed that this requires a functional view of the regulation of relationships between private parties: what are actually the functions that private law at the ‘natural’ national level serves and could these functions not be achieved in a better way at another level? The second question is what strategy should be adopted in dealing with a variety of sources out of which private law flows. The proposed strategy is not to eliminate pluralism or to try to create a coherent system out of conflicting sources, but to allow competition between diverging sets of norms with a relatively large role for parties to adopt the set of rules they like best. The necessary counterweight to this enhanced party choice is that its limits should be clearly defined: legislatures should be more explicit about what counts as mandatory law.
When we talk about tort law, we should start with the premise that it is designed to protect [human] dignity and promote social equality and social justice. Our causes of action and remedies should be tailored to…achieve those ends. Introduction: According to proponents of therapeutic jurisprudence, legal rules and actors (lawyers, judges, etc.) can have either therapeutic or anti-therapeutic effects. Law is a social force with the potential to impact either positively or negatively the emotional life, psychological well-being and sense of social citizenship of legal subjects. Remedies for vindicating rights provide a conceptual lens for ascertaining how the interest at stake is valued. Therapeutic or anti-therapeutic effects may result from the valuation of a plaintiff’s losses and his/her human capital, especially when compared with others in similar circumstances. Personal injury can have a particularly devastating impact on the lives of victims — physically, psychologically, financially, socially, etc. It is therefore important that personal injury law, in particular the assessment of losses, should seek to improve therapeutic outcomes for victims and minimize the potentially harmful effects of engagement with the legal system that may result from focusing on social identity. As Cassels notes, “It is hard to use the word justice to describe a system that replicates injustice and ensures that the disadvantaged remain disadvantaged.” The underlying premise of this paper is that although the structure of tort law is generally informed by corrective justice, that is, consideration is given only to the relative positions of the injurer and victim in a dispute, the tort system often reflects distributional considerations or broader societal interests. Thus, tort law principles, in particular those relating to the determination of liability, are rarely conceived solely in terms of correlativity and hence a bilateral engagement between the victim and tortfeasor. Rather, courts often consider broader issues such as the impact of a finding of liability on particular relationships and on the availability of certain social goods. These considerations can result in denial of an otherwise “legitimate” claim. Thus, notwithstanding how compelling a plaintiff’s claim might be from a moral and corrective justice standpoint, liability may be considered morally objectionable or socially undesirable. Viewed in this light, tort law is utilitarian because it reflects broader societal interests and a willingness to sacrifice individual interests for the greater good of society. Emphasis on broader societal considerations in determining the nature and limits of tort liability underscores the fact that the administration of justice, and in particular tort law, is a human and social institution designed to respond to the needs of society.Courts frequently make policy decisions and choices in their decision-making. As Professor Luntz argues, reliance on legal principles alone will often be insufficient to decide cases that come before the courts and it is important for courts to use policy in making decisions. Courts sometimes openly acknowledge that legal principles or aspects of their decision-making process reflect particular policy choices, values and distributional considerations, whereas others do not and even disavow reliance on policy. This confirms the observation that law, in particular the role of courts, is not simply declaratory of pre-determined rules or naturally constitutive social relations, what has been referred to as the “fairy tale view of law.” Rather, courts and legislatures actively construct, structure and maintain social relations. One of the benefits of this process is the ability to structure tort law to respond to the changing needs of society and to reflect contemporary conceptions of social mores, values and justice. Courts make particular policy choices that reflect their perception of social reality and human interactions, including assumptions about the place and role of persons in society, which may be gendered, racialized, classed, ableist, etc. Luntz argues that the fact that judges can have multiple reasons for a particular outcome, even if they concur in the result, and the frequency of dissenting judgments show the latitude available to judges. These varied outcomes cannot result merely from the application of legal principles; judges are bound to be influenced by values and policy considerations in making their decisions. Many tort theorists and courts reject a purely monist and non-instrumental view of tort law. While tort law is seen as an instrument for shaping society and hence promoting broader societal interests with respect to liability, distributional considerations are rarely adopted at the remedial stage. Rather, courts resort to formal legal principles and the need for “principled” outcomes that accord with law and justice between the parties when providing remedies for tort victims. Specifically, courts rely on the principle of restitutio in integrum — restoring the plaintiff to her status quo ante as far as money can do — as justification for the formalistic approach. Broader societal interests are deployed in remedial considerations usually in relation to intangible interests (non-pecuniary damages) and non-compensatory damages, such as punitive damages. However, there is reluctance to infuse broader policy considerations into compensation for tangible interests, such as impaired working capacity, in ways that will promote social justice, fairness and the equal moral worth of all plaintiffs. This reinforces historical patterns of discrimination, and projects these inequalities into the future, sometimes contrary to changing social realities.This paper adopts a consequentialist approach that focuses not only on substantive principles of tort liability but also considers how general principles of tort remedies are applied to victims, especially claimants from marginalized backgrounds. I explore the implications of the principle of corrective justice on the tort system, noting its inadequacy to fully explain the workings of that system and arguing that distributional considerations necessarily intrude. Remedies for personal injury can be a site for reinforcing and exacerbating the vulnerability and devaluation of members of marginalized groups. Discrimination is pronounced in the assessment of pecuniary losses, specifically in trust awards and damages for impaired working capacity. The paper will focus on these issues because the traditional legal principles informing this area reveal the unfairness to claimants from marginalized backgrounds and could leave the impression that it is cheaper to injure persons from such backgrounds compared to those from more favourable socio-economic situations. Damages for impaired working capacity and in trust awards also present unexplored opportunities to creatively assess victims’ losses in ways that will not reinforce their socially constructed marginalization and devaluation. This also reflects our commitment to equality and the Canadian Institute for the Administration of Justice’s (CIAJ) theme of using remedies to give content to substantive legal rights and to reflect “contemporary trends in law and society.”
The union of contemporary philosophy and tort law has never been better. Perhaps the most dynamic current in contemporary tort theory concerns the increasingly sophisticated inquires into the doctrinal elements of the law of torts, with the tort of negligence in particular garnering the most attention from theorists. In this article, I examine philosophically rich issues revolving around each of the elements constituting the tort of negligence: compensable injury, duty, breach, actual cause, and proximate cause.
En este artículo se analiza el problema especial que tiene que enfrentar un agente moral cualificado institucionalmente, en específico un juez de un sistema jurídico cuando tiene que decidir sobre una situación que supone un dilema moral o jurídico. A partir de la historia de Melville, Billy Budd, se examinan los principales desafíos que el caso de Billy Budd plantea a la filosofía jurídica y la filosofía moral. Se muestra cómo el desafío es discutido por los filósofos del derecho en términos de la dimensión institucional del derecho, y por los filósofos morales cuando tratan las cosas en términos de una ética kantiana, en oposición a una ética de la virtud. Por último se sugiere la necesidad de contar con una visión más integrada de la filosofía moral y la filosofía del derecho.
This Article explores a social vision of global public order taken from transnational private law. It recasts the potential role of private law in the cross-border economic context as centrally concerned with private action as both the object and vehicle of substantive and procedural governance. Viewed in this way, private law is a venue. for the contestation and regulation of private action by private action in the contemporary global system. With its distinctive strengths and weaknesses, transnational private law is viewed as one alternative among many regimes of global order and is understood to perform a social- indeed, "public"-function in the embedding of private behavior and relationships within a broader social order.
If Ulpian’s dichotomy of law into public and private is not valid, it is irrelevant whether - and if so how - it has been transferred to Croatia. To that end the paper focuses on the International Encyclopedia of Comparative Law’s criticism of modern theories endorsing the dichotomy, finding that weaknesses of the criticism do not reinvigorate the dichotomy but reveal paradoxically onesidedness of the theories that endorse it. There are only a few indicators that the dichotomy has been transferred into Croatian legal culture. In the Croatian legal system The Law on Ownership and Other Real Rights (1991) Article 35 provides for that the Republic of Croatia and other juridical persons of public law as bearers of the right to ownership have the same rights in legal relations as private owners. In Croatian legal doctrine there are some short textbook reviews of the dichotomy, the most important being the division of law made by Berislav Perić on the basis o George Gurvitch’s theory. The only comprehensive contribution to the problem is Vladimir Vodinelic’s massive doctoral dissertation started at Split University and defended at Belgrade University in 1986. The paper offers a reconstruction of the dichotomy that starts from Aristotle’s analysis of justice. However, in contrast to Ernest Weinrib’s theory, which conceptualizes private law as being entirely distinct from public law, the reconstruction postulates that private law presupposes public law without the reverse being the case. The present author’s earlier view of the matter (that public law is created by statutes whereas private law is created by juridical acts) is amended by a distinction between three types of two-sided juridical acts, namely, contracts of exchange, contracts of legislation and of contracts of federation, the last one creating social law as a possible third area of law on the same footing as public law and private law. It is argued that the Croatian legal system still divides into the same three areas, as demonstrated by Berislav Perić. The fruitfulness of the trichotomy is demonstrated by the analysis of the Croatian law of civic associations. The trichotomy of law into public, private and social, is in accord with the European legal tradition. Moreover, the trichotomy may be considered exemplary for social democracy as analysed by Thomas Meyer.
This paper provides an outline of some of the issues I am dealing with in connection to a research project being undertaken on Global Corporate Citizenship (GCC). This research is in its early stages so what is provided here is preliminary and designed to raise rather more issues than it solves. In particular, I am concerned to deal with what it might mean for companies to be described, or to describe themselves, as Global Corporate Citizens. In the general literature on corporate responsibility there is a move away from companies being described, or describing themselves, as Corporately Socially Responsible (CSR) to them re-describing themselves as Global Corporate Citizens (GCC). I want to ask what is involved in this (self)description as ‘citizens'? Can citizenship be applied first to companies and then extended into the global arena in which they operate? When looking at the actual practices of companies that claim to be either simply socially responsible or more recently corporate citizens , there is not much difference between them. Much the same ‘content', as it were, in terms of the claims to what they are doing or should do, adheres under both titles. So is it merely a matter of words? Does it make any difference that on the one had they claim to be socially responsible or on the other to be global citizens? I will argue that this is a very significant change in terminology that is having, and will continue to have, significant affects that need to be analysed and appreciated. To explore these implications, the following analysis situates GCC in a wider framework of the progressive juridicalization and constitutionalization of the international arena more generally.
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