Private Law and Public Right

University of Toronto Law Journal, 2011

In The Idea of Private Law, Ernest Weinrib sought to rescue private law's autonomy from functionalism's reduction of private law to an instrument of the public interest. The twin ideas he employed for this purpose were corrective justice and Kantian Right. According to Weinrib, corrective justice provides private law's unifying structure, while Kantian Right supplies its normative content. In this essay, I argue that Kantian Right cannot be the normative complement to the correctivejustice form of private law because, with the exception of trespass to the person, private law vanishes in Kantian Right. I argue that there is no possibility for an autonomous private law in Kantian Right and that there is, indeed, a logical progression from Kantian Right to the very functionalism that Weinrib opposes.

The two standard interpretations of Kant's view of the relationship between external freedom and public law make one of the terms a means for the production of the other: either public law is justified as a means to external freedom, or external freedom is justified as a means for producing a system of public law. This article defends an alternative, constitutive interpretation: public law is justified because it is partly constitutive of external freedom. The constitutive view requires conceiving of external freedom in a novel, second-personal way, that is, as an irreducibly relational norm.

University of Toronto Law Journal, 2011

In The Idea of Private Law, Ernest Weinrib sought to rescue private law's autonomy from functionalism's reduction of private law to an instrument of the public interest. The twin ideas he employed for this purpose were corrective justice and Kantian Right. According to ...

2016

This paper claims that a particular interpretation of Kant`s legal-political philosophy, as it is presented in his Doctrine of Right, provides us with the much needed resolution to the question of the normativity of law, precisely because it brings in a perspective that avoids both positivism and ethicism. This particular interpretation follows a strategy of argumentation that I call the "argument for the intrinsic normativity of law", i.e., the argument that law is defined and justified on its own grounds, without any need to refer to ethics, or rational/enlightened self-interest. This argument highlights the concept of legal person with the innate right to freedom as the necessary presupposition of legal practices, and sets forth a fundamental sense of justice inherent to the concept of law that consists in the reciprocal recognition of legal personality. In the end, I come up with a distinctive conception of law that I formulate as a last resort of normativity in the face of a conflict wherein an ethical solution does not appeal to all parties.

C. Michelon, THE PUBLIC IN LAW, G. Clunie, C. …, 2011

In this paper the author challenges the liberal vision of the private sphere as a realm of in which agents are justified in acting without taking into consideration anyone else's interests.

Legal Studies, 1998

To this very day, public law scholars seem to be concerned about the identity of their area of scientific interest. Many of them in many European legal cultures routinely labour, some even agonise over distinguishing public law from what appears to be a securely established field of private law. More than 20 years ago, 20 to 30 variations of the public/private-theme, usually elevated to the rank of ‘theories’, could be counted in German scholarship alone, none of them satisfying the desire to clarify, once and for all, the nature, purpose, and scope of public law. In this vein, law students are required to discuss at least the major demarcation theories so as, for instance, to establish jurisdiction of administrative courts, liability of the state, or the scope of constitutional rights.

Kant proposed an apriorical account of the idea of law, according to which the law's only legitimate goal is to guarantee for each citizen a possibly broad scope of external freedom compatible with the same scope of all other citizens. However, Kant did not make it entirely clear how this idea is to be justified. This paper presents two ways of justification, drawing on Kant's view of the human nature. The first one appeals to the apriorical components of this view (rationality, freedom, equality, and dignity), and the second one is based on its empirical components (the ambivalent account of human predispositions).

Nolan and Robertson (eds), Rights and Private Law, 2011

This chapter provides an overview of the relationship between rights and private law. The chapter is structured as follows: in part II, we examine the meaning of 'rights' (or 'rights-based') analysis of private law; in part III, we examine the meaning of the term 'right' in this context; in part IV, we explore the normative implications of rights-based theories of private law; part V is concerned with the relationship between rights and duties; part VI focuses on the relationship between rights-based analysis and liability rules which are not triggered by wrongs; in part VII, we look at the implications of the rights-based approach for private law remedies; part VIII is concerned with the relationship between rights-based and policy-based reasoning in private law; in part IX, we explain the relationship between rights-based theories and corrective justice; in part X, we explore the implications of rights analysis for the taxonomy of private law; and in part XI we consider the role of the state in a rights-based understanding of private law. Keywords: private law, tort law, tort theory, rights-based analysis, rights, corrective justice.

2015

According to Kant, “right in a state of nature is called private right” (MS, AA VI, S. 242). It is my claim that there is no room for a right to enforce the of- fer of benefits in the private right. Firstly, I will show how the concept of an innate right to freedom provides no conceptual foundation for a right to enforcement of alleged duties of cooperation. Since my argument is much more conceptual than hermeneutical, Isaiah Ber- lin’s analysis of negative liberty in “Two Concepts of Liberty” will be helpful here. Secondly, I will argue that the concepts of original acquisition and voluntary transfers are also at odds with the idea of a redistributi- ve justice. At this point, it will be very useful to notice that the first two principles of justice in holdings of Ro- bert Nozick roughly corresponds to the first two sec- tions of Kant’s theory of acquisition of external things in the private right. Finally, I will sketch an objection against political uses of a principle of historical rectifi- cation of acquisitions. The principle of rectification is the third and last principle of Nozick’s entitlement the- ory of justice in distribution, and it should be of con- cern to Kantians too, since it is a mere principle of rec- tification of the two first principles. Due to the points I am going to make, I conclude that, if somewhere, redis- tributivism should make its case in Kant’s doctrine of public right, as a right of a State.