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Vol 22 No 4 April/May 2017

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Whistleblowing: Law and Practice

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Private Law and the Value of Choice

ISBN13: 9781841138862
Published: November 2016
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £65.00

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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

Series: Law and Practical Reason

Private Law and the Value of Choice (eBook) ISBN 9781509902842
Published November 2016
Hart Publishing
£54.16 + £10.83 VAT
The Logic of Autonomy: Law, Morality and Autonomous Reasoning (eBook) ISBN 9781782250203
Published November 2012
Hart Publishing
£54.16 + £10.83 VAT
The Logic of Autonomy: Law, Morality and Autonomous Reasoning ISBN 9781849463461
Published November 2012
Hart Publishing
A Fair Criminal Law ISBN 9781849463768

Hart Publishing
Publication Abandoned