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The Idea of Private Law

Harvard University Press (1995)

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  1. The Morality of Bargaining: Insights From “Caritas in Veritate”. [REVIEW]James Bernard Murphy - 2011 - Journal of Business Ethics 100 (S1):79-88.
    Pope Benedict XVI’s 2009 Encyclical-Letter “ Caritas in Veritate ,” (CV) breaks some new ground in the tradition of Catholic social teaching. I argue that explicitly this document makes a call for a new theory of economic exchange. Whereas, the traditional scholastic theory of the “just price” was focused on “the principle of the equivalence in value of exchanged goods” (CV 35), a new theory of exchange must focus instead on “a metaphysical understanding of the relations between persons” (CV 53). (...)
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  • The Nature and Disvalue of Injury.Seth Lazar - 2009 - Res Publica 15 (3):289-304.
    This paper explicates a conception of injury as right-violation, which allows us to distinguish between setbacks to interests that should, and should not, be the concern of theories of justice. It begins by introducing a hybrid theory of rights, grounded in (a) the mobilisation of our moral equality to (b) protect our most important interests, and shows how violations of rights are the concern of justice, while setbacks where one of the twin grounds of rights is defeated are not. It (...)
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  • Corrective Justice and the Possibility of Rectification.Seth R. M. Lazar - 2008 - Ethical Theory and Moral Practice 11 (4):355-368.
    In this paper, I ask how - and whether - the rectification of injury at which corrective justice aims is possible, and by whom it must be performed. I split the injury up into components of harm and wrong, and consider their rectification separately. First, I show that pecuniary compensation for the harm is practically plausible, because money acts as a mediator between the damaged interest and other interests. I then argue that this is also a morally plausible approach, because (...)
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  • I—Testimony, Illocution and the Second Person.Richard Moran - 2013 - Aristotelian Society Supplementary Volume 87 (1):115-135.
    The notion of ‘bipolar’ or ‘second‐personal’ normativity is often illustrated by such situations as that of one person addressing a complaint to another, or asserting some right, or claiming some authority. This paper argues that the presence of speech acts of various kinds in the development of the idea of the ‘second‐personal’ is not accidental. Through development of a notion of ‘illocutionary authority’ I seek to show a role for the ‘second‐personal’ in ordinary testimony, despite Darwall's argument that the notion (...)
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  • Why We Ought to Be (Reasonable) Subjectivists About Justification.Andrew Botterell - 2007 - Criminal Justice Ethics 26 (1):36-58.
    My aim in this paper is to argue that justification should not be conceived of in purely objective terms. In arguing for that conclusion I focus in particular on Paul Robinson’s presentation of that position, since it is the most sophisticated defense of the objective account of justification in the literature. My main point will be that the distinction drawn by Robinson between objective and subjective accounts of justification is problematic, and that careful attention to the role played by reasonableness (...)
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  • Kant, Rawls, Habermas and the Metaphysics of Justice.Howard Williams - 1999 - Kantian Review 3:1-17.
    We can distinguish between those political philosophers who are concerned to carry the original Kantian project further, like Wolfgang Kersting, Otfried Höffe, Ernest Weinrib and Fernando Teson, and those contemporary political philosophers who have given up the original project but seek to draw inspiration from Kant's thinking. Two political philosophers who belong to this latter trend are Habermas and Rawls.
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  • Contract Rights and Remedies, and the Divergence Between Law and Morality.Brian H. Bix - 2008 - Ratio Juris 21 (2):194-211.
    There is an ongoing debate in the philosophical and jurisprudential literature regarding the nature and possibility of Contract theory. On one hand are those who argue (or assume) that there is, or should be, a single, general, universal theory of Contract Law, one applicable to all jurisdictions and all times. On the other hand are those who assert that Contract theory should be localized to particular times and places, perhaps even with different theories for different types of agreements. This article (...)
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  • Contract Law as Fairness.Josse Klijnsma - 2015 - Ratio Juris 28 (1):68-88.
    This article examines the implications for contract law of Rawls' theory of justice as fairness. It argues that contract law as an institution is part of the basic structure of society and as such subject to the principles of justice. Discussing the basic structure in relation to contract law is particularly interesting because it is instructive for both contract law and Rawlsian theory. On the one hand, justice as fairness has clear normative implications for the institution of contract law. On (...)
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  • Must Legalistic Conceptions of the Rule of Law Have a Social Dimension?N. W. Barber - 2004 - Ratio Juris 17 (4):474-488.
  • Virtuous Circularity: Positive Law and Particular Justice.Claudio Michelon - 2014 - Ratio Juris 27 (2):271-287.
    This paper argues that the positive allocative decisions paradigmatically carried out by the application of legal rules are a necessary condition for arguments about particular justice (i.e., distributive and commutative justice) to make sense. If one shifts the focus from the distinction between distributive and commutative justice to what the two aspects of particular justice are for, namely, providing criteria to judge the allocation of goods, it becomes clear that the distinction is conceptually unstable. The paper argues that stabilizing the (...)
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  • Form and Formalism: The View From Legal Theory.Brian Bix - 2007 - Ratio Juris 20 (1):45-55.
  • Moral Luck and Liability Lotteries.Guy Sela - 2010 - Res Publica 16 (3):317-331.
    Adversaries of Moral Luck (AMLs) are at pains to explain why wrongdoers are liable to bear burdens (punishment, compensation etc.) which are related to the harm they cause, because the consequences of what we do are a matter of luck. One attempt to solve this problem suggests that wrongdoers who cause more harm are liable to bear a greater burden not because they are more blameworthy but rather because they get the short straw in a liability lottery (represented by the (...)
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  • Emerging Legal Orders. Formalism and the Theory of Legal Integration.Burkhard Schafer & Zenon Bankowski - 2003 - Ratio Juris 16 (4):486-505.
  • Philosophical Issues in Tort Law.John Oberdiek - 2008 - Philosophy Compass 3 (4):734-748.
    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.
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  • What the Utilitarian Cannot Think.Mark T. Nelson - 2015 - Ethical Theory and Moral Practice 18 (4):717-729.
    I argue that utilitarianism cannot accommodate a basic sort of moral judgment that many people want to make. I raise a real-life example of shockingly bad behavior and ask what can the utilitarian say about it. I concede that the utilitarian can say that this behavior caused pain to the victim; that pain is bad; that the agent’s behavior was impermissible; even that the agent’s treatment of the victim was vicious. However, there is still one thing the utilitarian cannot say, (...)
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  • Can Tort Law Be Moral?Avihay Dorfman - 2010 - Ratio Juris 23 (2):205-228.
    According to the established orthodoxy, the law of private wrongs—especially common law torts—fails to map onto our moral universe. Four objections in particular have caught the imagination of skeptics about the moral foundations of tort law: They purport to cast doubt over the moral appeal of the duty of care element; they target the seemingly inegalitarian objective standard of care; they object to the morally arbitrary elements of factual causation and harm; and they complain about the unnecessary extension of liability (...)
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  • Form and Substance in Legal Reasoning: Two Conceptions.Matti Ilmari Niemi - 2010 - Ratio Juris 23 (4):479-492.
    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 (...)
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