Private Law Theory

ABSTRACT
Non-consequentialist justifications of private law liability foreground the role of the law in setting out, part-constituting, and providing enforcement of interpersonal moral rights and duties at the suit of right-holders. The justificatory role of deterrence is either explicitly rejected or hardly mentioned. The impression given is that deterrence is somehow necessarily inconsistent with the justificatory role of interpersonal moral rights and duties. My aim in this paper is to show that this is not the case. I try to outline a general account of the normative role of deterrence in the justification of private law norms and enforcement. In making this argument, I will ultimately be affirming Gardner’s view that deterrence matters, non-trivially, to private law, while not being the whole story, or even the most important story.

Steel, Sandy, Deterrence in Private Law (April 17, 2023) in H Psarras and S Steel (eds), Private Law and Practical Reason: Essays on John Gardner’s Private Law Theory (OUP, 2023).