From personal life to private law

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Acknowledgements

I am grateful to Mike Dowdle, John Gardner, Andrew Halpin, Rachel Leow, Arthur Ripstein, Arie Rosen, Nicole Roughan, Andrew Simester, Robert Stevens and Zhong-Xing Tan for helpful comments on an earlier draft.

Notes

1 Page references will be in the text in parentheses.

2 J Raz, The Concept of a Legal System: An Introduction to the Theory of Legal System (2nd edn, Clarendon Press 1980), chapter IV.

3 And, if anything, it is arguable that the tort – property direction of ‘footnote’ travel is the other way around. Most of the conversion cases I have taught do not concern the tort of conversion per se. There is, again arguably, not a lot to be ironed out there. The cases rather concern whether, for example, X managed to pass title to Y by way of constructive delivery, (Thomas v Times Book Company [1966] 1 WLR 911), or whether it was an implicit term of a bailment that a hirer of a vehicle could hand over possession of the vehicle to a repairer to make repairs (Tappenden v Artus [1964] 2 QB 185). The action is initiated by making a claim for conversion, but that is frequently just the means by which other parts of the law, facilitative parts, the gist of the matter, are considered.

4 J Raz, The Morality of Freedom (Clarendon Press 1986) 42–53.

5 J Gardner, ‘What is Tort Law For? Part 1. The Place of Corrective Justice’ (2011) 30 Law and Philosophy 1, 28–50. Ripstein provides a ‘rights’ version of the thesis, under which the right to a remedy is the same right as that which was violated. A Ripstein, Private Wrongs (Harvard University Press 2016), 234. For the reasons given by Gardner, ibid. at 29–30, it seems to me that the ‘rights’ version individuates rights incorrectly. In his most recent writing on this subject, A Ripstein, ‘Kantian Perspectives on Private Law’ in AS Gold and others (eds), Oxford Handbook of the New Private Law (Oxford University Press forthcoming 2020), Ripstein says (at ms 14, my italics), ‘But the Kantian claim is not that the remedy is an equivalent of the right; it is the claim that the the rationale for the remedy is completely exhausted by the content of the right’. This looks to me to be a ‘reasons’ version of the continuity thesis in Kantian form, but as Arthur Ripstein has pointed out to me, this does not make these ‘reasons’ accounts parallel, since on Gardner’s view the relevant legal relation is assembled out of, or is the legal specification of, otherwise strictly or loosely relational reasons, whereas for Ripstein the relationship between the potential wrongdoer/potential victim of the wrong is the only source of the reasons in question. See A Ripstein, ‘Morality and Law through Thick and Thin: Comment on John Gardner’s From Personal Life to Private Law’ (2017) 15 Jerusalem Review of Legal Studies 138, 145–151.

6 [1932] AC 562.

7 For a recent discussion of the distinction by Gardner, see J Gardner, ‘Dagan and Dorfman on the Value of Private Law’ (2017) 117 Columbia Law Review 179, 181–187.

8 By which I mean to include whatever property laws or other legal relations might be involved, like the passing of title in a sale of goods.

9 Consider, for example, the development of the mortgage out of the manipulation of the free hold conveyance by including a conditional term for re-conveyance.

10 See JE Penner, ‘Is Loyalty a Virtue, and Even if it is, Does it Really Help Explain Fiduciary Liability?’ in AS Gold and PB Miller (eds), Philosophical Foundations of Fiduciary Law (Oxford University Press 2014); JE Penner, ‘Fiduciary Law and Moral Norms’ in EJ Criddle and others (eds), The Oxford Handbook of Fiduciary Law (Oxford University Press 2019); JE Penner, ‘Trustees and Agents Behaving Badly: When and How is “Bad Faith” Relevant?’ in M Harding and PB Miller (eds), Fiduciaries and Trust: Ethics, Politics, Economics and Law (Cambridge University Press 2020).

11 See JE Penner, ‘Voluntary Obligations and the Scope of the Law of Contract’ (1996) 2 Legal Theory 325, 345 et seq.

12 Obviously there are exceptions, family law being the most obvious. Perhaps employment law is another.

13 Or intended friendships, as when one character in Curb Your Enthusiasm rear ends the car of another in order to initiate a relationship (103 fn18).

14 Penner, supra n 11, 335–40, 354–56.

15 See GJ Postema, ‘Classical Common Law Jurisprudence (Part I)’ (2002) 2 Oxford University Commonwealth Law Journal 155; GJ Postema, ‘Classical Common Law Jurisprudence (Part II)’ (2003) 3 Oxford University Commonwealth Law Journal 1.