Private Law Theory

Abstract
This paper argues against the view that corrective justice provides the form of private law while distributive justice provides the form of public law. More primary than the forms of justice is the form of law. Law is inherently public. The basic publicness of law can be expressed in many different ways, from the ‘omnilateral’ perspective discussed by Kant to the way in which the rule of law ensures that law is an instrument of public power rather than private domination. Because law is public it also aims at justice and the common good. While this does not mean that law is intrinsically concerned with any particular form of justice, it does mean that law is concerned with avoiding injustice. Using this framework, I draw several implications for property law …

Austin, Lisa M, The Public Nature of Private Property (2018). James Penner and Michael Otsuka (eds) Property Theory: Legal and Political Perspectives (2018).

First posted 2018-12-19 06:58:30