{"title":"Augustinian property","authors":"William S. Brewbaker","doi":"10.4324/9781003018704-7","DOIUrl":"https://doi.org/10.4324/9781003018704-7","url":null,"abstract":"","PeriodicalId":374530,"journal":{"name":"Christianity and Private Law","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114035789","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 : 2020-10-27DOI: 10.4324/9781003018704-10
Paula A. Franzese, Angela C. Carmella
{"title":"Housing and hope","authors":"Paula A. Franzese, Angela C. Carmella","doi":"10.4324/9781003018704-10","DOIUrl":"https://doi.org/10.4324/9781003018704-10","url":null,"abstract":"","PeriodicalId":374530,"journal":{"name":"Christianity and Private Law","volume":"104 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133238225","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}
Tort theory is an anxious field, trying either to explain the body of tort law through a unified account or surrendering to the view that torts is just an accumulation of ad hoc “policy” judgments without a consistent explanatory basis. In this chapter, we argue that the natural law theory in the Christian tradition breaks through this impasse in tort theory by showing how the basic outlines of tort law are properly derived from principles of morality, while the details within that framework are left open for choice among a wide range of reasonable arrangements. In our view, central aspects of natural law theory such as its account of the relation of law and morality and the manner in which positive law is derived from the natural law explain and justify tort doctrine.
{"title":"The moral of torts","authors":"M. Moreland, Jeffrey A. Pojanowski","doi":"10.2139/ssrn.3617969","DOIUrl":"https://doi.org/10.2139/ssrn.3617969","url":null,"abstract":"Tort theory is an anxious field, trying either to explain the body of tort law through a unified account or surrendering to the view that torts is just an accumulation of ad hoc “policy” judgments without a consistent explanatory basis. In this chapter, we argue that the natural law theory in the Christian tradition breaks through this impasse in tort theory by showing how the basic outlines of tort law are properly derived from principles of morality, while the details within that framework are left open for choice among a wide range of reasonable arrangements. In our view, central aspects of natural law theory such as its account of the relation of law and morality and the manner in which positive law is derived from the natural law explain and justify tort doctrine.","PeriodicalId":374530,"journal":{"name":"Christianity and Private Law","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124680232","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 : 2018-05-16DOI: 10.4324/9781003018704-20
Nathan B. Oman
This essay traces in skeletal form a history of the Christian critique of litigation, with a focus on the well-articulated argument of the Reformation theologian John Calvin. Most of contemporary private law theory focuses on the idea of liability. For law and economics liability is a price placed on certain conduct in order to create optimal incentives. For moral theorists, such as partisans of corrective justice theory in tort law, liability is the manifestation of a duty of repair that the law imposes on wrong doers. Missing from these theories is the agency of the plaintiff, yet this is precisely the feature of private litigation that Christianity has criticized through the centuries. In contrast to other contemporary approaches to private law, civil recourse theory emphasizes the way that private law empowers plaintiffs to act against those that have wronged them. In contrast to much of contemporary private law theory, Calvin’s argument is indifferent to the scope of duties and liabilities. Rather, like civil recourse theorists, he focuses on the agency of plaintiffs. Calvin’s argument, however, is critical of key assumptions of those theorists. First, it suggests that generally speaking instituting a suit is immoral. Second, Calvin’s argument suggests that revenge and “the right to be punitive,” which civil recourse theorists have offered as the basis for punitive damages, cannot be proper reasons for the law. Finally, and most controversially, Calvin seems to reject the “right to reparation” on which some civil recourse theorists have sought to normatively ground private law.
{"title":"John Calvin’s quarrel with civil recourse theory","authors":"Nathan B. Oman","doi":"10.4324/9781003018704-20","DOIUrl":"https://doi.org/10.4324/9781003018704-20","url":null,"abstract":"This essay traces in skeletal form a history of the Christian critique of litigation, with a focus on the well-articulated argument of the Reformation theologian John Calvin. Most of contemporary private law theory focuses on the idea of liability. For law and economics liability is a price placed on certain conduct in order to create optimal incentives. For moral theorists, such as partisans of corrective justice theory in tort law, liability is the manifestation of a duty of repair that the law imposes on wrong doers. Missing from these theories is the agency of the plaintiff, yet this is precisely the feature of private litigation that Christianity has criticized through the centuries. In contrast to other contemporary approaches to private law, civil recourse theory emphasizes the way that private law empowers plaintiffs to act against those that have wronged them. In contrast to much of contemporary private law theory, Calvin’s argument is indifferent to the scope of duties and liabilities. Rather, like civil recourse theorists, he focuses on the agency of plaintiffs. Calvin’s argument, however, is critical of key assumptions of those theorists. First, it suggests that generally speaking instituting a suit is immoral. Second, Calvin’s argument suggests that revenge and “the right to be punitive,” which civil recourse theorists have offered as the basis for punitive damages, cannot be proper reasons for the law. Finally, and most controversially, Calvin seems to reject the “right to reparation” on which some civil recourse theorists have sought to normatively ground private law.","PeriodicalId":374530,"journal":{"name":"Christianity and Private Law","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125865184","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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