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Private Law and the Rule of Law$
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Lisa M Austin and Dennis Klimchuk

Print publication date: 2014

Print ISBN-13: 9780198729327

Published to Oxford Scholarship Online: March 2015

DOI: 10.1093/acprof:oso/9780198729327.001.0001

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Strict Duties and the Rule of Law

Strict Duties and the Rule of Law

(p.188) (p.189) 8 Strict Duties and the Rule of Law
Private Law and the Rule of Law

Stephen A Smith

Oxford University Press

This chapter argues that strict duties are incompatible with the rule of law because they provide misleading guidance. In a legal system that contains duties to take reasonable care, the only plausible interpretation of strict duties is that they give citizens reasons to take more than reasonable care, that is, to take extreme care. Yet it seems clear that the law cannot seriously want citizens to take such care. Strict duties thus render the law unclear. This chapter examines and rejects three possible responses to this objection: namely, strict duties are legitimate because they support justified liabilities; strict duties are not actually enforced; and strict duties are substantively justified. It concludes by suggesting that the law should reframe strict duties as duties to take reasonable care and, at the same time, should reframe the liabilities previously attached to breaching such duties as ‘free-standing liabilities’, that is, as liabilities to compensate that can arise notwithstanding that no duty was breached.

Keywords:   strict duty, rule of law, reasonable care

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