Philosophy of Law

This book develops the implications of that venerable Aristotelian notion of justice for understanding contemporary private law. Over the last decades corrective justice has become a central but controversial idea among legal scholars and theorists. This book presents corrective justice as the normative idea latent in the institutions and concepts of a fair and coherent regime of liability. It begins by setting out the conceptual components of corrective justice: the correlativity of the parties normative positions as the structuring idea of their relationship, and a robust notion of rights and their correlative duties (conceived in Kantian terms) as the content appropriate to legal relationships structured in that way. It then describes the significance of corrective justice for various legal contexts: for the grounds of liability in negligence, contract and unjust enrichment; for the relationship between right and remedy; for legal education; for the comparative understanding of private law; and for the compatibility of corrective justice with state support for the poor. The book integrates the concrete and wide-ranging treatment of legal doctrine with a unitary and comprehensive set of theoretical ideas. Combining legal and philosophical analysis, it presents private law in non-instrumental terms, as a distinctive mode of moral discourse that focuses on the normativity intrinsic to the parties relationship.

This book offers a new approach to understanding private law. Rejecting the functionalism popular among legal scholars, the book advances the idea that private law is an autonomous and non-instrumental moral practice, with its own structure and rationality. The book draws on Aristotle's account of corrective justice and Kant's legal philosophy to set out a formalist approach to private law that repudiates the identification of law with politics or economics. It argues that private law is to be understood as a juridical enterprise in which coherent public reason elaborates the norms implicit in the parties' interaction. Private law embodies a special morality that links the doer and the sufferer of injury. The book elucidates the standpoint internal to this morality and traces the implications of the formalism he proposes for our ideas of the structure, coherence, and normative grounding of private law. It also shows how this formalism manifests itself in the leading doctrines of private law. Finally, the book describes the public but non-political role of the courts in articulating the special morality of private law.

This book's chapters are devoted to the philosophical foundations of one of the most dynamic areas of private law — the law of unjust enrichment. Taking stock of the rapid changes to the law of unjust enrichment over the last decade, some of the most important writers in the area examine central questions raised by demarcating unjust enrichment as a separate area of private law, including how its normative foundations relate to those of other areas of private law, how the concept of enrichment relates to the concept of property, how the obligation to make restitution relates to other private law obligations, how the remedy of restitution relates to principles of corrective justice, and what role mental elements should play in shaping the law. The relationship between unjust enrichment and public law is also considered.

This book is concerned with the conflict between the goals of justice and economic efficiency in the allocation of risk, especially risk pertaining to safety. The book approaches the subject from the premise that the market is central to liberal political, moral, and legal theory. The first part of the book rejects traditional rational choice liberalism in favor of the view that the market operates as a rational way of fostering stable relationships and institutions within communities of individuals with broadly divergent conceptions of the good. However, markets are needed most where they are most difficult to create and sustain, and one way to understand contract law in liberal legal theory, according to this book, is as an institution designed to reduce uncertainty and thereby make markets possible.

Vagueness leads to indeterminacies in the application of the law in many cases. This book responds to the challenges that those indeterminacies pose to a theory of law and adjudication. The book puts controversies in legal theory in a new light, using arguments in the philosophy of language to offer an explanation of the unclarities that arise in borderline cases for the application of vague expressions. However, the book also argues that vagueness is a feature of law, and not merely of legal language: the linguistic and non-linguistic resources of the law are commonly vague. These claims have consequences that have seemed unacceptable to many legal theorists. Because law is vague, judges cannot always decide cases by giving effect to the legal rights and obligations of the parties. Judges cannot always treat like cases alike. The ideal of the rule of law seems to be unattainable. The book offers a new articulation of the content of that ideal. It argues that the pursuit of justice and the rule of law do not depend on the idea that the requirements of the law are determinate in all cases. The resolution of unresolved disputes is an important and independent duty of judges — a duty that is itself an essential component of the ideal of the rule of law.