Stephen Smith, ‘The Rights of Private Law’

This essay argues, first, that the most important non-instrumental theory of private law — the corrective justice theory — is compatible with (though it does not require) a pluralist account of private law. Specifically, I argue that a corrective justice theory is compatible with two kinds of pluralist accounts: (a) an account that holds that certain parts of private law cannot be explained on the basis of corrective justice (‘external pluralism’); and (b) an account that holds that the parts of private law that corrective justice can explain are grounded in qualitatively different kinds of corrective justice values (‘internal pluralism’). The essay’s second main argument, which is developed by exploring the complex heterogeneity of private law rules, is that any plausible corrective justice account of actual private law, at least as private law is conventionally understood in common law jurisdictions, must be pluralist in both these senses.

Smith, Stephen A., The Rights of Private Law (2009). Andrew Robertson & Hang Wu (eds), The Goals of Private Law (Oxford, Hart Publishing, 2009) 113-138.

First posted 2012-10-11 06:45:53

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