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Private Law and the Value of Choice : Law and Practical Reason - Emmanuel Voyiakis

Private Law and the Value of Choice

Law and Practical Reason

Hardcover

Published: 12th January 2017
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Is the purpose of private law to correct wrongs? To promote just distributions? To enhance economic efficiency? Or to protect valuable moral practices and individual autonomy? Theorists have long suspected that all of these ideas may play some role in the justification of private law. Many classical doctrines of contract and tort law seem consistent with wrong-correction and the protection of individual autonomy. Other doctrines, such as the payment of damages as a valid option for a contract party, seem more informed by efficiency considerations. Modern statutory regimes for the protection of consumers, employees or insurance holders are typically understood as efforts to minimize disparities in the distribution of bargaining power across the community. Described in those terms, private law emerges as a patchwork of different and largely independent justifications of varying breadth and applicability. This book argues that this description is mistaken. Its main thesis is that private law is best understood as having an aim that is both unifying and distinctive. That aim is to articulate reasonably acceptable principles as to when our institutions can legitimately hold agents accountable for the choices they make in their transactions with one another. The moral centre of this account is the idea (proposed in general form by T.M. Scanlon) that the legitimacy of enforcement in the context of private transactions must depend on the value for parties to those transactions of being able to choose under conditions and from a range of alternatives that they could not reasonably reject as a basis for being held so accountable. The proposed value-of-choice account has the potential to explain how wrong-correcting, distributive, efficiency and autonomy considerations can contribute to the justification of private law, namely by affecting the value of agents' choice, while structuring their relative contributions around a single and morally attractive idea.

1. Private Law and the Burden of Repair I. Original Burdens and Burdens of Repair II. A 'Direct' Account of the Burden of Repair III. The Significance of Wrongfulness IV. Repair Without Wrongfulness or Corrective Justice 2. Responsibility, but the Right Kind I. Substantive and Attributive Responsibility II. Private Law Principles as Allocations of Substantive Responsibilities III. Some Implications of the Attributive/Substantive Divide IV. A Progress Report 3. Choice and Responsibility I. The Value of Choice and the Asymmetry between Benefits and Burdens II. Making a Choice vs having a Choice III. Two Sets of Objections IV. From the Value-of-choice Account to Models of Private Law 4. Protection Against the Burden of Repair I. Why Protection? II. Protection as a 'Bail Out' and as a Condition of Responsibility III. Protection as a Condition of Responsibility: A Preview IV. Working Examples and Variations V. The Protection Principle VI. Comparing Notes: Other Accounts of Contributory Negligence VII. Protection and the 'Background Conditions' of Choice 5. Avoidability I. Exercise of Care as an Objection to Liability II. Rylands v Fletcher and Doing Things on One's Own Terms III. Limited Capacities and the Standard of Care IV. Negligence Liability and the UK SARAH Act 2015 V. Conclusion 6. Contracts and the Social Structure I. The Classical Story and Its Limitations: Scanlon's EL and EF Principles II. A Structure-sensitive Alternative: The EFS Principle III. Three Objections IV. Contract Doctrine in the Light of the EFS Principle V. 'Fair Terms', Justice, and Opportunity 7. Vicarious Liability I. Participation and Placement II. The Significance of Placement III. Participation and Attribution IV. An Illustration: Vicarious Liability for the Use of Cars V. Vicarious Liability as Protection VI. Liability for Protection vs Direct Liability VII. Conclusion

ISBN: 9781841138862
ISBN-10: 184113886X
Series: Law and Practical Reason
Audience: BAC
Format: Hardcover
Language: English
Number Of Pages: 272
Published: 12th January 2017
Publisher: Bloomsbury Publishing
Country of Publication: GB
Dimensions (cm): 24.1 x 16.2  x 2.1
Weight (kg): 0.55
Edition Number: 1