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.

The Enforcement of Contracts

2020 ◽  
pp. 80-109
Author(s):  
Andrew S. Gold
Keyword(s):  
Contract Enforcement ◽  
Private Law ◽  
Property Interest ◽  
Private Rights ◽  
Key Features ◽  
The Right

This chapter turns to redress in the contract setting, which generally involves contract enforcement or a damages equivalent. Some private law theorists explain private rights of action in light of a right holder’s special standing to make demands. Others look to a wronged party’s standing to complain about a wrong. Each approach offers insights, yet neither of these types of standing will inexorably lead to the standing to enforce. This chapter then considers a particular way that standing to enforce contracts can be explained and justified: if the right to performance is understandable as a property interest or at least property-like. In the process, it also indicates how a focus on rights of redress can help to explain key features of private law doctrine.

Natural Rights and Natural Law

2020 ◽  
pp. 20-36
Author(s):  
Dennis Klimchuk
Keyword(s):  
Immanuel Kant ◽  
Natural Law ◽  
Common Ground ◽  
Private Property ◽  
Natural Rights ◽  
Philosophical Foundations ◽  
Natural Laws ◽  
Starting Point ◽  
History Of ◽  
The Right

This chapter argues for the continued relevance of the natural law tradition to inquiry into the philosophical foundations of private law. It focuses on the arc in the history of political philosophy that starts in Hugo Grotius and ends in Immanuel Kant. The original community of property on Grotius’s account and throughout the early modern tradition is a conceptual starting point, a representation of how people stand with respect to one another in the world abstracted from the institutions through which people administer the regime of private property. Grotius and others in the natural law tradition cast the moral aspect of that standing in terms of the natural laws that protected the natural rights of equals. The chapter then looks at two debates. Grotius’s and John Locke’s disagreements about the foundations of property rights and Grotius’s and Samuel von Pufendorf’s about the foundations of the right of necessity are, at their core, disagreements about how to render private ownership consistent with equality. The common ground against which these disagreements is framed is the view that, through its doctrines, the institution of private property inevitably expresses some view on this question, and in this way reveals its connection to the rest of people’s moral lives.

Rights and Demands

2018 ◽  
Author(s):  
Margaret Gilbert
Keyword(s):  
Human Rights ◽  
Immanuel Kant ◽  
Moral Argument ◽  
Joint Commitment ◽  
Social Phenomena ◽  
Joel Feinberg ◽  
Joseph Raz ◽  
The Right ◽  
Judith Thomson ◽  
Stephen Darwall

This book is the first extended treatment of demand-rights, a class of rights apt to be considered rights par excellence. Centrally, to have a demand-right is to have the standing or authority to demand a particular action from another person, who has a correlative obligation to the right-holder. How are demand-rights possible? Linking its response to central themes and positions within rights theory, Rights and Demands argues for two main theses. First, joint commitment, in a sense that is explained, is a ground of demand-rights. Second, it may well be their only ground. The first thesis is developed with special reference to agreements and promises, generally understood to ground demand-rights. It argues that both of these phenomena are constituted by joint commitments, and that this is true of many other central social phenomena also. In relation to the second thesis it considers the possibility of demand-rights whose existence can be demonstrated by moral argument without appeal to any joint commitment, and the possibility of accruing demand-rights through the existence of a given legal system or other institution construed without any such appeal. The relevance of the book’s conclusions to our understanding of human rights is then explained. Classic and contemporary rights theorists whose work is discussed include Wesley Hohfeld, H. L. A. Hart, Joel Feinberg, Immanuel Kant, Thomas Scanlon, Judith Thomson, Joseph Raz, and Stephen Darwall.

On the Artifactual—and Natural— Character of Legal Institutions

2018 ◽  
Author(s):  
Corrado Roversi
Keyword(s):  
Natural Law ◽  
Common Ground ◽  
Legal Positivism ◽  
Legal Institutions ◽  
Human Beings ◽  
Legal Realism ◽  
Natural Law Theory ◽  
The Law ◽  
Theory Of Law

Are legal institutions artifacts? If artifacts are conceived as entities whose existence depends on human beings, then yes, legal institutions are, of course, artifacts. But an artifact theory of law makes a stronger claim, namely, that there is actually an explanatory gain to be had by investigating legal institutions as artifacts, or through the features of ordinary artifacts. This is the proposition explored in this chapter: that while this understanding of legal institutions makes it possible to find common ground between legal positivism and legal realism, it does not capture all of the insights offered by these two traditions. An artifact theory of law can therefore be necessary in explaining the law, but it will not suffice to that end. This chapter also posits that legal artifacts bear a relevant connection to certain conceptions of nature, thus vindicating one of the original insights behind natural law theory.

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.

scholarly journals Francisco de Vitoria on the Right to Free Trade and Justice

2021 ◽  
pp. 1-17
Author(s):  
Alejo José G. Sison ◽  
Dulce M. Redín
Keyword(s):  
Business Ethics ◽  
Free Trade ◽  
Natural Law ◽  
Human Right ◽  
Free Markets ◽  
Law Of Peoples ◽  
Private Initiative ◽  
The Right ◽  
Ius Gentium ◽  
Francisco De Vitoria

In 1538–39 Francisco de Vitoria delivered two relections: De Indis and De iure belli. This article distills from these writings the topic of free trade as a “human right” in accordance with ius gentium or the “law of peoples.” The right to free trade is rooted in a more fundamental right to communication and association. The rights to travel, to dwell, and to migrate precede the right to trade, which is also closely connected to the rights to preach, to protect converts, and to constitute Christian princes. This has significant repercussions on the field of business ethics: the right to free trade is ultimately founded directly on natural law and indirectly on divine law; trade is not independent of ethics; and trade is presented as an opportunity to develop the virtues of justice and friendship, among other repercussions. Vitoria is portrayed as a defender of private initiative and free markets.

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 What Constitutions Can Do (but Courts Sometimes Don’t): Property, Speech, and the Influence of Constitutional Norms on Private Law

2004 ◽  
Vol 17 (1) ◽  
pp. 61-81 ◽  
Author(s):  
Oliver Gerstenberg
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
Freedom Of Expression ◽  
Social Democracy ◽  
Recent Attempt ◽  
Private Law ◽  
Human Rights Norms ◽  
The Right ◽  
Higher Law

In this paper I want to address, against the background of the ECtHR’s recent attempt to resolve the clash between property rights and the right to freedom of expression in its decision in Appleby v. UK, two questions, both of which I take to be related to the overarching theme of “social democracy”. First, there is the problem of the influence of “higher law”-of human rights norms and constitutional norms-on private law norms; second, the question of the role of adjudication in “constitutionalizing” private law, in other words, the question of the “judicial cognizability” of constitutional norms within private law.

REVIEW ON THE E.A. IVANOVA’S BOOK “AGREEMENTS IN THE FIELD OF CIVIL JURISDICTION: PROCEDURAL AND LEGAL ASPECT”

2021 ◽  
Vol 11 (4) ◽  
pp. 317-333
Author(s):  
S.P. GRUBTSOVA
Keyword(s):  
Law Enforcement ◽  
Market Economy ◽  
Economic Freedom ◽  
Legal Aspect ◽  
Theoretical Development ◽  
Full Potential ◽  
Private Law ◽  
Legal Institutions ◽  
Procedural Law ◽  
Key Aspects

The review presents the book by E.A. Ivanova “Agreements in the Field of Civil Jurisdiction: Procedural and Legal Aspect”. According to the reviewer, in modern conditions there is a tendency towards strengthening of private law principles and the development of dispositiveness in the context of civil procedural law, which is associated, in particular, with the implementation of the ideas of economic freedom and market economy within the framework of civil circulation and the transformation of legal institutions of substantive branches of law. Proceeding from this, there is a need for new doctrinal, lawmaking and law enforcement approaches on the issue of empowering legal participants in the independent choice of forms and methods of protecting violated rights, as well as in order to influence the dynamics of procedural legal relations. This is possible through the use in legislation of the full potential of procedural agreements, the theoretical development of which was carried out in the book under review, meaningfully revealing the key aspects of the indicated problem.

COHABITANTS IN PRIVATE LAW: TRUST, FRUSTRATION AND UNJUST ENRICHMENT IN ENGLAND, GERMANY AND CANADA

2013 ◽  
Vol 62 (3) ◽  
pp. 629-665 ◽  
Author(s):  
Anne Sanders
Keyword(s):  
Intimate Relationships ◽  
Case Law ◽  
Private Law ◽  
Party Autonomy ◽  
Unjust Enrichment ◽  
Legislative Action ◽  
The Law ◽  
Canadian Provinces ◽  
The Right ◽  
English Canadian

AbstractNeither in England, nor in Germany, nor in all Canadian provinces, does the law provide specific rules for the redistribution of property for unmarried cohabitants after the breakdown of their relationship. Instead, courts apply the law of trusts, contract and unjust enrichment with an eye to the characteristics of intimate relationships, as, for example, in decisions like the EnglishJones v Kernott([2011] UKSC 53) and the CanadianKerr v Baranow(2011 SCC 10). This article compares English, Canadian, and German case law and evaluates it both from a doctrinal perspective and as a part of a general approach towards cohabitation. The article concludes with an appeal for legislative action that strikes the right balance between party autonomy and protection of the weaker party.

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