Andrew Botterell, ‘Private law, public right, and the law of unjust enrichment’

Unjust enrichment continues to fascinate and frustrate. While it is clear that unjust enrichment is a form of private law liability distinct from that found in property, contract, or tort, it remains stubbornly difficult to articulate its underlying normative basis. In this paper I suggest that some headway can be made on this problem by appealing to a distinction between principles of private right and principles of public right. Relying on Ernest Weinrib’s helpful development of this interesting Kantian idea I argue that the law of unjust enrichment may very well manifest principles reflective of public right’s requirement of systematicity. On this view unjust enrichment provides courts with supplemental decision-making principles that permit the suspension of valid principles of private law while leaving the underlying logic of those principles intact.

Andrew Botterell, Private law, public right, and the law of unjust enrichment, Jurisprudence – An International Journal of Legal and Political Thought, Published online: 18 October 2021.

First posted 2021-10-19 17:00:42

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