Private Law and the Value of Choice

By Emmanuel Voyiakis

Some argue that we should think about private law in terms of rights and wrongs. Others argue that we should think about it in terms of social costs. This book proposes that we should think about private law in terms of substantive responsibilities, i.e. to focus on justifying the practical burdens that private law requires people to bear in the context of agreements, accidents and so on. This way of thinking has three distinct advantages. First, it makes it easier to understand the claims of various accounts of private law as rival claims about the same thing, namely the burdens or duties that agents may be required to bear in the context of an agreement or an accident. Second, it allows us to use some ideas about responsibility, especially the idea that we have reason to want our responsibilities to depend on how we respond in situations of choice, as an independent measure for assessing the moral merits of those rival claims. Third, it gives us an intuitive way of thinking about the normative significance of certain considerations, such as the distributive effects of private law principles, and the effect of rational biases on how agents respond in situations of choice. The first part of the book lays out an account of 'substantive responsibility' for private law. The second part applies that account to certain controversial areas of the law of contract and tort: unconscionability, liability for risk-creation and strict liability. (Series: Law and Practical Reason, Vol. 8) [Subject: Legal Philosophy, Tort Law, Commercial Law, Private Law]

188 pages

Publication Date: 1/12/2017
Format: Cloth
ISBN: 9781841138862