Private Law Theory

ABSTRACT
This essay traces in skeletal form a history of the Christian critique of litigation, with a focus on the well-articulated argument of the Reformation theologian John Calvin. Most of contemporary private law theory focuses on the idea of liability. For law and economics liability is a price placed on certain conduct in order to create optimal incentives. For moral theorists, such as partisans of corrective justice theory in tort law, liability is the manifestation of a duty of repair that the law imposes on wrong doers. Missing from these theories is the agency of the plaintiff, yet this is precisely the feature of private litigation that Christianity has criticized through the centuries. In contrast to other contemporary approaches to private law, civil recourse theory emphasizes the way that private law empowers plaintiffs to act against those that have wronged them. In contrast to much of contemporary private law theory, Calvin’s argument is indifferent to the scope of duties and liabilities. Rather, like civil recourse theorists, he focuses on the agency of plaintiffs. Calvin’s argument, however, is critical of key assumptions of those theorists. First, it suggests that generally speaking instituting a suit is immoral. Second, Calvin’s argument suggests that revenge and ‘the right to be punitive’, which civil recourse theorists have offered as the basis for punitive damages, cannot be proper reasons for the law. Finally, and most controversially, Calvin seems to reject the ‘right to reparation’ on which some civil recourse theorists have sought to normatively ground private law.

Oman, Nathan B, John Calvin’s Quarrel with Civil Recourse Theory (May 16, 2018). Christianity and Private Law, Robert Cochran and Michael Moreland, eds (Cambridge UP, forthcoming).

First posted 2019-03-20 07:18:06