Patrick Shaunessy, ‘A Matter of Choice: Rethinking Legal Formalism’s Account of Private Law Rights’

Ernest Weinrib’s theory of legal formalism argues that there are two mutually irreducible forms of justice: distributive justice and corrective justice. Formalism views private law exclusively through the lens of corrective justice and frames the legal relationship between individuals in terms of correlative rights and duties. This article considers the rights (and duties) of corrective justice with a focus on two principal issues: (i) where the rights of corrective justice come from; and (ii) what is wrong with formalism’s account of their origin. Although Kant’s doctrine of right serves as the foundation for the rights of corrective justice, formalism in its current form does not provide an adequate explanation of how these rights develop from the moral rights of Kant’s philosophy. This article attempts to address this disconnect by proposing an account of the transition from moral rights to legal rights. In doing so, it recasts distributive justice and corrective justice as integrated, mutually reinforcing aspects of a unified form of justice based on the principles of Kantian right.

Patrick Shaunessy, A Matter of Choice: Rethinking Legal Formalism’s Account of Private Law Rights. Oxford Journal of Legal Studies (2016) doi: 10.1093/ojls/gqw014. First published online: June 15, 2016.

First posted 2016-06-21 12:04:18

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