The Idea of Redressive Justice

2020 ◽  
pp. 21-53
Author(s):  
Andrew S. Gold
Keyword(s):  
Third Parties ◽  
Corrective Justice ◽  
Private Law ◽  
The Right

Chapter 2 introduces the idea of redressive justice, while also distinguishing leading theories of corrective justice. As the chapter develops, there is a distinctive kind of justice involved when right holders undo wrongful transactions they have suffered—that is, when they engage in acts of redress—or when third parties undo such transactions on the right holder’s behalf. The authorship of a remedy matters, in part because a wrongdoer’s obligation to undo a wrong is not symmetrical with a right holder’s privilege (if it exists) to undo that same wrong. Authorship also matters because the moral ledger of the parties involved will vary depending on which party undoes a wrong. This chapter argues that much of private law is best explained in light of the justice in redress.

Accession of Movables to Land: I

2002 ◽  
Vol 6 (1) ◽  
pp. 67-84 ◽  
Author(s):  
L P W van Vliet
Keyword(s):  
Third Parties ◽  
Private Law ◽  
Legal Systems ◽  
Legal Effect ◽  
The Right

The rules governing accession of movables to land are based on the dual principles of preservation of value and protection of third parties. Thus extinction of title prevents the attachment from being undone; and appearance determines legal effect. Neither principle has room for subjective intention or any other criterion unknown to outsiders. The rules of accession, therefore, should be based on objective criteria. A retention of title clause, for example, should not be allowed to postpone accession. None the less in the legal systems described below there is considerable variation both in the rules of accession and in the right of severance (ius tollendi). This suggests that any attempt at harmonising security rights in European private law is likely to fail unless there is also harmonisation of the rules of accession and the right of severance. This article will be published in two parts. The second part will appear in the next issue.

The Right of Redress

2020 ◽  
Author(s):  
Andrew S. Gold
Keyword(s):  
Political Theory ◽  
Legal Theory ◽  
Corrective Justice ◽  
Legal Rights ◽  
The Political ◽  
Private Law ◽  
Full Account ◽  
Class Actions ◽  
The Law ◽  
The Right

The law enables private parties to undo the wrongs committed against them. In other words, the law enables victims to seek redress. This book shows how a distinctive kind of justice governs our legal rights of redress, different from the leading corrective justice approaches. In the process, it helps to make sense of tort, contract, fiduciary law, and unjust enrichment doctrine. As developed in The Right of Redress, when a wrong is remedied, the authorship of that remedy matters. The justice in private law is sensitive to a right holder’s authorship, and understanding how solves a number of legal theory puzzles. This book also offers a novel account of the state’s obligations. Many forms of redress are only available with state assistance, and a full account of private law requires an account of the state’s responsibility to assist. It also requires an explanation of those cases in which the state declines to assist. Prior accounts have drawn on Kantian principles or a Lockean social contract theory. Drawing on public fiduciary theory, The Right of Redress develops a distinctive account of the state’s role. Lastly, this book offers a new take on various modern features of the private law landscape, ranging from equity, to damage caps, to arbitration, to corporate claims, to class actions. The Right of Redress thus offers a path-breaking account of the justice in private law, of the political theory that underlies it, and of the contemporary features that shape our rights of redress today.

Der Spielraum bei der Vermarktung von Waldleistungen ist eingeschränkt (Essay) | The scope for the commercialization of forest services is limited (essay)

2009 ◽  
Vol 160 (8) ◽  
pp. 228-231
Author(s):  
Hansruedi Walther
Keyword(s):  
Private Property ◽  
Legal Framework ◽  
Third Parties ◽  
Wood Products ◽  
Forest Owner ◽  
Free Access ◽  
School Class ◽  
Market Niche ◽  
The Right ◽  
Exclusive Right

A forest owner can only commercialize non-wood products and services within a tightly restricted market niche. On account of free access being permitted to the forest it is impossible to deny to third parties the consumption of many non-wood products and services: everybody has the right to be in the forest for recreation. As a result many non-wood services cannot be commercialized by the forest owner, or not exclusively. What would seem unthinkable elsewhere on private property seems to be taken for granted in the forest: third parties may take products from the forest and even sell them without being the forest owners. For certain nonwood services or products, such as the installation of rope parks or for burial in the forest, the organizer must conclude an agreement with the forest owner or draw up a contract for servitude or benefit. In addition, for these activities a permit from the Forestry Department is necessary. On the other hand, for an itinerant school class or for the production of forest honey neither a binding regulation with the forest owner nor a permit from the Forestry service is necessary, provided that no constructions are erected in the forest. The only exclusive right which remains to the forest owner, besides the sale of his property, is the exploitation of his trees within the legal framework.

Formation of Contract and Third Parties in Cambodia

2018 ◽  
Author(s):  
Ly Tayseng
Keyword(s):  
Academic Writing ◽  
Case Law ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
Contract Formation ◽  
The Law ◽  
The Right ◽  
Formal Requirements

This chapter gives an overview of the law on contract formation and third party beneficiaries in Cambodia. Much of the discussion is tentative since the new Cambodian Civil Code only entered into force from 21 December 2011 and there is little case law and academic writing fleshing out its provisions. The Code owes much to the Japanese Civil Code of 1898 and, like the latter, does not have a requirement of consideration and seldom imposes formal requirements but there are a few statutory exceptions from the principle of freedom from form. For a binding contract, the agreement of the parties is required and the offer must be made with the intention to create a legally binding obligation and becomes effective once it reaches the offeree. The new Code explicitly provides that the parties to the contract may agree to confer a right arising under the contract upon a third party. This right accrues directly from their agreement; it is not required that the third party declare its intention to accept the right.

Accountability in Global Governance

2020 ◽  
Author(s):  
Gisela Hirschmann
Keyword(s):  
Human Rights ◽  
Global Governance ◽  
International Organizations ◽  
Third Parties ◽  
Human Rights Violations ◽  
The European Union ◽  
Economic Rights ◽  
The Right ◽  
Austerity Policy ◽  
Comprehensive Study

How can international organizations (IOs) like the United Nations (UN) and their implementing partners be held accountable if their actions and policies violate fundamental human rights? Political scientists and legal scholars have shed a much-needed light on the limits of traditional accountability when it comes to complex global governance. However, conventional studies on IO accountability fail to systematically analyze a related, puzzling empirical trend: human rights violations that occur in the context of global governance do not go unnoticed altogether; they are investigated and sanctioned by independent third parties. This book puts forward the concept of pluralist accountability, whereby third parties hold IOs and their implementing partners accountable for human rights violations. We can expect pluralist accountability to evolve if a competitive environment stimulates third parties to enact accountability and if the implementing actors are vulnerable to human rights demands. Based on a comprehensive study of UN-mandated operations in Afghanistan, Bosnia, and Kosovo, the European Union Troika’s austerity policy, and global public–private health partnerships in India, this book demonstrates how competition and human rights vulnerability shape the evolution of pluralist accountability in response to diverse human rights violations, such as human trafficking, the violation of the rights of detainees, economic rights, and the right to consent in clinical trials. While highlighting the importance of studying alternative accountability mechanisms, this book also argues that pluralist accountability should not be regarded as a panacea for IOs’ legitimacy problems, as it is often less legalized and might cause multiple accountability disorder.

Kantian Perspectives on Private Law

2020 ◽  
pp. 68-84
Author(s):  
Arthur Ripstein
Keyword(s):  
Immanuel Kant ◽  
Natural Law ◽  
Private Law ◽  
Legal Institutions ◽  
Naive Theory ◽  
Private Rights ◽  
Kantian View ◽  
Moral Structure ◽  
The Right ◽  
In Virtue Of

This chapter articulates the Kantian approach to private law. It begins by explaining the aims and ambitions of Kantian legal philosophy more generally and, in particular, introducing the Kantian idea that a particular form of thought is appropriate to a particular domain of inquiry or conduct. The chapter situates the Kantian view within a broad natural law tradition. For the part of that tradition that Immanuel Kant develops, the moral structure of natural law is animated by a conception of personal interaction that is so familiar as to be almost invisible. Despite its centrality to both morality and law, in the absence of legal institutions, this natural law is inadequate to its own principles. It requires legal institutions to render it fully determinate in its application consistent with everyone’s independence. It also requires public institutions of adjudication. The chapter further looks at Kant’s “division” of private rights, distinguishing first between the innate right that everyone has simply in virtue of being human and acquired rights that require an affirmative act to establish them. It then goes through the Kantian division of the titles of private right, situating them in relation to the distinction between persons and things. Finally, the chapter articulates the Kantian account of what might be called the naïve theory of remedies—that is, that the remedy is an imperfect continuation of the right that was violated.

scholarly journals The Code of Capital: How the Law Creates Wealth and Inequality – Core Themes

2021 ◽  
Vol 11 (1) ◽  
pp. 1-7
Author(s):  
Katharina Pistor
Keyword(s):  
Coercive Power ◽  
Private Law ◽  
The Core ◽  
The Law ◽  
The Right

Abstract In this brief introduction, I summarize the core themes of my book “The Code of Capital: How the Law Creates Wealth and Inequality”. Capital, I argue, is coded in law – predominantly in a handful of private law institutions. By relying on legal coding techniques, asset holders invoke the right to enforce claims against others, if necessary with the help of the state’s coercive power.

Within the Public-Private Divide. Right to Housing and Consumer Law in Recent European Private Law Trends

Global Jurist ◽  
2018 ◽  
Vol 19 (2) ◽  
Author(s):  
Rocco Alessio Albanese
Keyword(s):  
Fundamental Rights ◽  
Private Law ◽  
The European Union ◽  
The Public ◽  
Consumer Law ◽  
Charter Of Fundamental Rights ◽  
Recent Trends ◽  
New Perspective ◽  
The Right ◽  
Protection Of Right

Abstract This paper intends to discuss some major European legal issues by building on the critique of a certain narrow relevance of human basic needs, according to traditional Western legal conceptions of the subject as well as of the public-private divide. In particular it aims at verifying the potentiality of consumer law for rethinking the right to housing, within recent trends of European Private Law, by adopting a remedial approach. For this reason the paper analyzes three well-known cases decided by the Court of Justice of the European Union (CJEU) – namely Aziz, Sanchez Morcillo and Kušionová – as examples of this meaningful trend. Through the combination of the fairness test over contractual terms with the criteria of effectiveness and proportionality, a broader protection of right to housing is recognised even in horizontal private relationships. Art. 7 of the EU Charter of Fundamental Rights (CFREU) could represent the constitutional reference for this new perspective. The paper also intends to show how the relevance of the basic need for housing is traced to debtor's families. CJEU's interpretative itinerary seems to start from a fairness test about contractual terms, but eventually comes to give protection to subjective situations that are even out of the domain of the contract.

scholarly journals DUTIES AND LIABILITIES IN PRIVATE LAW

Legal Theory ◽  
2006 ◽  
Vol 12 (2) ◽  
pp. 137-156
Author(s):  
Peter Jaffey
Keyword(s):  
Strict Liability ◽  
Corrective Justice ◽  
Private Law ◽  
Liability Claims

Private law is generally formulated in terms of right–duty relations, and accordingly, private-law claims are understood to arise from breaches of duty, or wrongs. Some claims are not easy to explain on this basis because the claim arises from an act that the defendant was justified in doing. The violation/infringement distinction seems to offer an explanation of such claims, but it is argued that the explanation is illusory. Claims of this sort are best understood as based not on a primary right–duty relation at all but on a “primary liability” or “right–liability” relation. A primary-liability claim is not a claim arising from the breach of a strict-liability duty. The recognition of primary-liability claims does not involve skepticism about duties or rules or legal relations and it is consistent with the analysis of private law in terms of corrective justice.

Sign in / Sign up

Export Citation Format

Share Document