Pub Date : 2020-03-18DOI: 10.1093/oso/9780190865269.003.0019
L. Fennell
This chapter examines whether and how malign motives can convert the otherwise innocent exercise of a property right into a civil wrong. As a doctrinal matter, courts have been willing to grant that motives do indeed matter in certain cases. Tracking a distinction drawn within the theory of rights proper between specificationism and generalism, this chapter imagines two ways of making sense of this phenomenon: one might liken property rights to a lattice wherein they are defined permanently at the outset to exclude badly motivated conduct, or one might instead analogize them to a blanket in which holes can be cut around badly motivated acts piecemeal. The chapter opts for the second conceptualization because it meshes better with property’s in rem aspect—they “cover” all cases, one might say—and the organic way property rights evolve. Motives rarely alter property rights, but by factoring in the owner’s incivility as well as victims’ interests and broader social interests, exceptional cases come into focus that illuminate the structure of property rights.
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Pub Date : 2020-03-18DOI: 10.1093/oso/9780190865269.003.0009
Victor Tadros
This chapter argues that civil wrongs are central to remedies. It shows that private law remedies are primarily responsive to wrongs. Furthermore, the stringency of secondary or remedial duties reflects the special moral significance of wrongs as such. This chapter attributes the tendency to discount the normative relationship between wrongs and remedies to lack of clarity on that between primary and secondary moral and legal duties. Here, the justification for secondary legal duties becomes an extension of that for secondary moral duties. This implies that the way forward lies in the clarification of the normative significance of the deontic structure of private law and, in turn, the associated moral aims of private law.
{"title":"Secondary Duties","authors":"Victor Tadros","doi":"10.1093/oso/9780190865269.003.0009","DOIUrl":"https://doi.org/10.1093/oso/9780190865269.003.0009","url":null,"abstract":"This chapter argues that civil wrongs are central to remedies. It shows that private law remedies are primarily responsive to wrongs. Furthermore, the stringency of secondary or remedial duties reflects the special moral significance of wrongs as such. This chapter attributes the tendency to discount the normative relationship between wrongs and remedies to lack of clarity on that between primary and secondary moral and legal duties. Here, the justification for secondary legal duties becomes an extension of that for secondary moral duties. This implies that the way forward lies in the clarification of the normative significance of the deontic structure of private law and, in turn, the associated moral aims of private law.","PeriodicalId":297088,"journal":{"name":"Civil Wrongs and Justice in Private Law","volume":"51 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116227531","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-03-18DOI: 10.1093/oso/9780190865269.003.0004
Ori J. Herstein
This chapter suggests that we should question whether private law is genuinely about legal wrongs. It argues that the correction of wrongs ordinarily leaves a normative remainder. In morality, these remainders can provide, for example, reason for ongoing regret and remorse over one’s wrongdoing, and shows that corrective action taken subsequent to a wrong is, at most, a second-best way of responding to the reasons one has to comply with the violated moral duty. This chapter considers that the existence of a normative remainder is condition requisite to the characterization of faulty conduct as a wrong. It also claims that remainders must track the character of the wrong: moral wrongs leave moral remainders, and legal wrongs leave legal remainders. Thus, this chapter argues that whether private law is concerned with legal wrongs properly so-called depends on whether legal remedies leave a legal remainder. Doubting that such legal remainders obtain, the chapter raises a challenge to viewing private law as a law of legal wrongs.
{"title":"The Remainder","authors":"Ori J. Herstein","doi":"10.1093/oso/9780190865269.003.0004","DOIUrl":"https://doi.org/10.1093/oso/9780190865269.003.0004","url":null,"abstract":"This chapter suggests that we should question whether private law is genuinely about legal wrongs. It argues that the correction of wrongs ordinarily leaves a normative remainder. In morality, these remainders can provide, for example, reason for ongoing regret and remorse over one’s wrongdoing, and shows that corrective action taken subsequent to a wrong is, at most, a second-best way of responding to the reasons one has to comply with the violated moral duty. This chapter considers that the existence of a normative remainder is condition requisite to the characterization of faulty conduct as a wrong. It also claims that remainders must track the character of the wrong: moral wrongs leave moral remainders, and legal wrongs leave legal remainders. Thus, this chapter argues that whether private law is concerned with legal wrongs properly so-called depends on whether legal remedies leave a legal remainder. Doubting that such legal remainders obtain, the chapter raises a challenge to viewing private law as a law of legal wrongs.","PeriodicalId":297088,"journal":{"name":"Civil Wrongs and Justice in Private Law","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128839997","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-03-18DOI: 10.1093/oso/9780190865269.003.0013
Ahson Azmat
This chapter argues that non-instrumental, deontic approaches to tort law—like Corrective Justice or Civil Recourse Theory—presuppose an unspecified and undefended non-naturalist account of the normativity of civil wrongs. Linking this puzzle to current debate within metaphysics, the chapter argues that a deontic theory of tort must be a theory of legal grounding—that is, an account of the relationship between torts and the facts that underwrite them. It specifies a model of the logical form of this grounding relationship and then examines whether it is a metaphysical or, instead, a sui generis legal relationship. The chapter then turns squarely to Corrective Justice and Civil Recourse Theory to determine whether they can make good on their metaphysical presuppositions.
{"title":"Joint-Carving in Deontic Tort","authors":"Ahson Azmat","doi":"10.1093/oso/9780190865269.003.0013","DOIUrl":"https://doi.org/10.1093/oso/9780190865269.003.0013","url":null,"abstract":"This chapter argues that non-instrumental, deontic approaches to tort law—like Corrective Justice or Civil Recourse Theory—presuppose an unspecified and undefended non-naturalist account of the normativity of civil wrongs. Linking this puzzle to current debate within metaphysics, the chapter argues that a deontic theory of tort must be a theory of legal grounding—that is, an account of the relationship between torts and the facts that underwrite them. It specifies a model of the logical form of this grounding relationship and then examines whether it is a metaphysical or, instead, a sui generis legal relationship. The chapter then turns squarely to Corrective Justice and Civil Recourse Theory to determine whether they can make good on their metaphysical presuppositions.","PeriodicalId":297088,"journal":{"name":"Civil Wrongs and Justice in Private Law","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116361235","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This chapter argues that the dominant “interpersonal accountability model of tort law” must be significantly amended to accommodate tort law’s protection of the interests of artificial persons. The chapter focuses on protection of state interests, in particular. It begins with a critical exposition of the interpersonal accountability model, highlighting the extent to which leading tort theorists share the assumption that torts are wrongs that are suffered by natural persons alone. Next, the chapter shows that and how the interpersonal accountability model neglects torts against the state, and offers a schema for categorizing these torts. The chapter concludes by tracing the implications of arguments developed in it. Among other things, it notes that understanding that tort law includes torts against the state calls into question the tendency to gloss torts as “private wrongs” and supports the practice of treating them as “civil wrongs.”
{"title":"Torts Against the State","authors":"P. Miller, Jeffrey A. Pojanowski","doi":"10.2139/SSRN.3332673","DOIUrl":"https://doi.org/10.2139/SSRN.3332673","url":null,"abstract":"This chapter argues that the dominant “interpersonal accountability model of tort law” must be significantly amended to accommodate tort law’s protection of the interests of artificial persons. The chapter focuses on protection of state interests, in particular. It begins with a critical exposition of the interpersonal accountability model, highlighting the extent to which leading tort theorists share the assumption that torts are wrongs that are suffered by natural persons alone. Next, the chapter shows that and how the interpersonal accountability model neglects torts against the state, and offers a schema for categorizing these torts. The chapter concludes by tracing the implications of arguments developed in it. Among other things, it notes that understanding that tort law includes torts against the state calls into question the tendency to gloss torts as “private wrongs” and supports the practice of treating them as “civil wrongs.”","PeriodicalId":297088,"journal":{"name":"Civil Wrongs and Justice in Private Law","volume":"68 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123623815","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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