PRIVATE LAW AND KANTIAN 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 ...

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.

University of Toronto Law Journal, 2011

In Kant's philosophy of law “public right” refers to the condition in which public institutions guarantee rights. This lecture deals with the relationship between public right and the rights of private law. In accordance with corrective justice, private law links the parties to a transaction bilaterally, so that they are subject to correlatively structured bases of liability. In contrast, public right is omnilateral, linking everyone to everyone else. Two normative ideas inform public right: publicness (that public institutions secure everyone's rights on the basis of reasons that can be known and acknowledged by all) and systematicity (that the norms and institutions of law form a systematic whole). In standard cases public right makes no difference to a private law controversy except to add the dimensions of publicness and systematicity. In some circumstances, however, public right alters the principle on which a court resolves a controversy, without, however, changing the...

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.

Jurisprudence, 2019

Nicholas McBride's The Humanity of Private Law: Part I. Explanation is, in many ways, a ground-breaking work in private law theory. The book makes highly ambitious claims about the nature of private law, human flourishing and Western liberal societiessomething rather unusual in contemporary legal theory, in which we have grown accustomed to a more piecemeal approach to legal phenomenaand substantiates those claims with arguments taken from English private law, history and philosophy. McBride does not shy away from discussing highly contested issues such as the true nature of morality, 1 the history of English private law, 2 or even fairly abstruse topics such as the metaphysics of Being and 'the implications of an undifferentiated noumenal reality for a Kantian right to independence'. 3 As one would expect with a wide-ranging book such as this, some readers might feel a bit disappointed with the length and depth in which some of the issues are addressed, and some readers might find that some of the arguments are not particularly well crafted. Its shortcomings notwithstanding, McBride's book is an original and welcome addition to the literature on private law theory that deserves to be widely discussed by philosophers of private law, even by those not particularly interested in English private law.

Law and Philosophy (forthcoming 2013)

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.