Private Law Theory

Introduction:

… Many accounts of the law of restitution follow this general path of theorizing about private law, analyzing restitutionary doctrines in terms of autonomy or utility. Most chapters in my book, The Law and Ethics of Restitution, also look at significant restitutionary categories such as mistakes, self-regarding conferral of benefits, wrongful enrichments, restitution in contractual settings, and constructive trusts in bankruptcy through the lenses of autonomy and utility. For the above reasons, I still hold that these perspectives are important, indeed crucial, for our understanding of the law of restitution. But I would now argue that the third normative commitment – to community or, more broadly, to the facilitation and protection of interpersonal relationships, which I discussed in The Law and Ethics of Restitution as having only “limited implications in restitutionary doctrine,” is far more significant than I had realized.

In this Essay, I hope to give relationship its proper role in restitution theory. The Essay discusses how restitutionary doctrines protect the integrity of certain types of relationships by providing guarantees against betrayal of trust and by making free riding a losing proposition. It also considers contexts where restitution serves to recruit third parties, who are external to the relationship the law seeks to safeguard, as indirect guardians. Finally, I conclude with some remarks on why monist accounts of private law, such as those focusing on autonomy or on utility, tend to obscure private law’s role in facilitating relationships and on ways a pluralist theory of restitution may help to address this flaw.

Hanoch Dagan, ‘Restitution and Relationships’. Boston University Law Review, 92 BUL Rev 1035, May, 2012.

First posted 2012-07-06 06:04:47