Defenses

This chapter focuses on defenses. A considerable number of theories has grappled with the normative justification(s) for the various claims that arise in private law. This focus on the rights and powers in private law is understandable. After all, without a claim there is nothing much further to discuss. What has gone underexamined are the justifications for the various defenses that exist—the ways of resisting otherwise good claims. Defenses pose a challenge to any monist theory of private law. If private law, or a part of it, is all about efficiency or independence or utility or any other single thing, why not deal with all the elements of what justifies the plaintiff’s claim as an element of the cause of action? Why do people need defenses at all? Either the claim is justified or it is not. On the monist view of private law—that it is only concerned with One Big Thing—what is the need or role for any separate “defenses” that concern countervailing considerations? The chapter then describes what a defense is before looking at pleading and proof and distinguishing between justification and excuse. It also considers the form of reasons and details the general defenses, defenses in contract, defenses to torts, defenses in unjust enrichment, and equitable defenses.

Material Pluralism and Ordinary Bodies

This chapter addresses the question of whether Descartes adopts the “pluralist” view that the material world is composed of distinct substantial parts, or rather the “monist” view that there is a single extended substance, of which all bodies are modes. The defense here of a pluralist reading of Descartes highlights the result in the Synopsis to the Meditations that the realm of extension is composed of distinct substantial and incorruptible “bodies-taken-in-general.” This result is considered in relation to Spinoza’s argument that the Cartesian rejection of a vacuum in nature requires a monistic account of extended substance. Finally, there is an examination of the question of whether the view in the Synopsis allows room at a fundamental level for bodies distinct from bodies-taken-in-general. It is argued that though Descartes perhaps has room at this level for human bodies, he does not have room for other ordinary bodies.

Introduction

This introductory chapter clarifies the definitions of ‘personal life’ and ‘private law’ as undertaken by this book. Roughly, ‘personal life’ refers to what people do (as well as what they think, believe, want, etc.) apart from the law. The chapter discusses a ‘monist’ view that what private law would have us do is best understood by reflecting on what we should be doing, quite apart from private law, which entails reflection on the reasons why we should be doing it. As to ‘private law’, this chapter and the book as a whole primarily refer to the law of torts and the law of contract. This definition excludes a few similar but unrelated concepts such as unjust enrichment, breach of trust, and breach of confidence.

Marxism and the Dialectics of Ecology

The recovery of the ecological-materialist foundations of Karl Marx's thought, as embodied in his theory of metabolic rift, is redefining both Marxism and ecology in our time, reintegrating the critique of capital with critical natural science. This may seem astonishing to those who were reared on the view that Marx's ideas were simply a synthesis of German idealism, French utopian socialism, and British political economy.… The rediscovery of Marx's metabolism and ecological value-form theories, and of their role in the analysis of ecological crises, has generated sharply discordant trends. Despite their importance in the development of both Marxism and ecology, neither idea is without its critics. One manifestation of the divergence on the left in this respect has been an attempt to appropriate aspects of Marx's social-metabolism analysis in order to promote a crude social "monist" view based on such notions as the social "production of nature" and capitalism's "singular metabolism." Such perspectives, though influenced by Marxism, rely on idealist, postmodernist, and hyper-social-constructivist conceptions, which go against any meaningful historical-materialist ecology and tend to downplay (or to dismiss as apocalyptic or catastrophist) all ecological crises—insofar as they are not reducible to the narrow law of value of the system.Click here to purchase a PDF version of this article at the Monthly Review website.