Private Law Theory

ABSTRACT
In this chapter I raise some general considerations about the relevance of Raz’s theory of autonomy to private law. I hope to show that Raz’s theory of autonomy meshes pretty seamlessly with what I shall call a Kantian instrumentalist account of private law, pointing out an aspect of his theory which I don’t think has been given sufficient attention, that is, the ‘independence’ condition for autonomy. I shall then provide reasons for proceeding with caution if we aim to show that private law gives effect to the ‘range of options’ condition for autonomy Raz identifies. I shall turn to Dagan’s and Heller’s conception of autonomy, distinguish it from Raz’s, and raise some questions about its nature and effectiveness in explaining private law.

Penner, James, Taking Raz Seriously: On the Value of Autonomy and its Relation to Private Law (June 30, 2022). Oxford Studies in Private Law Theory Volume II.

First posted 2022-07-05 10:00:38