Tort Law for Cynics

Various tort scholars have in recent years come to the defence of a ‘traditional’ or ‘idealist’ view of tort law. In the context of negligence this view implies that having a duty of care means that the law considers violating this duty as something that the duty-holder must make an effort not to do. Idealists contrast this view with a ‘cynical’ view according to which having a duty of care implies a legal requirement to pay damages for breach of the duty of care. In this essay I defend the cynical view against its critics. Descriptively, I argue that the cynical view can easily explain doctrines supposedly only explicable from an idealist perspective, and that in fact many aspects of tort law are hard to reconcile with idealism. I argue that various empirical constraints often make idealism, even if it were desirable, unattainable, and in this regard cynicism is a more honest view than idealism. But I further argue that cynicism is not merely a concession to reality, that idealism is often undesirable. Idealists ignore the fact that opting for idealism has costs (both pecuniary and non-pecuniary), and that when those are taken into account, idealism is often normatively unattractive

The Justice in Unjust Enrichment

The question of what justice has to do with the law of unjust enrichment (if it has anything to do with it at all) has in recent years come to occupy scholars who have sought to explain the theoretical foundations of this area of law and its relationship with other branches of private law. A popular answer has been that the law of unjust enrichment, like the rest of private law, instantiates the politically neutral norms of corrective justice. In this article, I argue that this is not the case in two distinct senses. First, even on its own, corrective justice does not provide a satisfactory grounding for this area of law (or, for that matter, for other branches of private law). Second, parts of the law of unjust enrichment are explained by competing notions of justice. I consider some of them in this article, and I show that what all of them have in common is that they are grounded in considerations of distributive justice or that they are part of a political theory. In the concluding sections of the article, I offer a way of reconciling these political foundations of unjust enrichment law with private law’s seeming indifference to distributive considerations. I do this by calling attention to the institutional constraints under which courts operate. I argue that while such constraints are essential for understanding private law adjudication, they do not challenge the political foundations of private law, and they undermine many of the practical recommendations for private law offered by corrective justice theorists

COVID-19: Cost-Benefit Analysis and Politics

The COVID-19 pandemic forced governments around the world to make tough political decisions about the cost of saving lives and the limits of doing so. One of the striking aspects of the debates over these necessary tradeoffs is the relatively little weight individual rights seemed to have carried in these discussions. At first, this might have seen the triumph of cost-benefit analysis (CBA); and in a sense, it was. However, the pandemic has also shown the limitations of CBA, especially in the face of severe uncertainty. This essay reviews some of the sources of uncertainty in the context of the pandemic and shows how, in the face of such uncertainty, different countries fall back onto their political commitments, which include concern for individual rights. I thus argue that rather than being in competition to CBA, political considerations (including concern for individual rights) end up being incorporated into an impressionistic calculation of costs and benefits of government action. I conclude by suggesting that this is where future discussion of the theoretical foundations of CBA should focus on

The possibility of naturalistic jurisprudence: Legal positivism and natural law theory revisited

Contemporary legal philosophy is predominantly anti-naturalistic. This is true of natural law theory, but also, more surprisingly, of legal positivism. Several prominent legal philosophers have in fact argued that the kind of questions that legal philosophers are interested in cannot be naturalized, such that a naturalistic legal philosophy is something of a contradiction in terms. Against the dominant view I argue that there are arguable naturalistic versions of both legal positivism and natural law. Much of the essay is dedicated to showing that such views are possible: I identify naturalistic versions of a “natural law” view, a “positivist” view, as well as a “semi positivist” view, all of which are variants of the familiar (anti-naturalistic) views defended under these labels. I also offer a tentative argument in support of a naturalistic positivist view, one that has more in common with the views of Thomas Hobbes and Jeremy Bentham than with the anti-naturalistic positivist views popular these days

Jurisprudence Between Science and the Humanities

For a long time philosophy has been unique among the humanities for seeking closer alliance with the sciences. In this Article I examine the place of science in relation to legal positivism. I argue that, historically, legal positivism has been advanced by theorists who were also positivists in the sense the term is used in the philosophy of social science: they were committed to the idea that the explanation of social phenomena should be conducted using similar methods to those used in the natural sciences. I then argue that since around 1960 jurisprudence, and legal positivism in particular, has undergone change toward anti-positivism. Central to this trend has been the idea that proper jurisprudential inquiry must be conducted from the internal point of view. This view amounted to an attempt to combine a scientific-like aim of neutral description with a humanistic method of inquiry. It thus did not entirely abandon its links with scientific inquiry, but it has radically changed their nature. I show that this stance has had a negative impact of narrowing both the range of issues discussed and the kind of method considered appropriate for discussing these questions. I then argue that to counter these isolationist trends jurisprudence would benefit from reorientation of its midway position between science and the humanities in the opposite direction. its aims should be those traditionally associated with the humanities but it should try to bring new insight to these questions with a methodology much closer to that of the sciences

Holmes\u27s \u27Path of the Law\u27 as Non-Analytic Jurisprudence

Despite being widely read and the source of numerous oft-cited aphorisms “The Path of the Law” remains elusive. To put the matter starkly: What is its thesis? Does it have one? How can we reconcile its matter-of-factly opening pages and its almost mystical conclusion? For some this was just proof that Holmes was a superficial and contradictory thinker; for others it suggested that “Path” should be read a series of interesting insights and arresting phrases, and nothing more. In this essay I suggest reading Holmes’s famous speech as an essay with a thesis about, well, the path of the law. I argue that the essay should be divided into three parts, roughly corresponding to the law’s past, present, and future. This approach to jurisprudence was popular in the nineteenth century, but almost disappeared in course of the twentieth century. The rise of ahistorical analytic jurisprudence and the decline of grand narratives from historiography made Holmes’s main point easy to miss. But in both jurisprudence and history intellectual climates seem to be changing, making it easier for contemporary audiences to read and accept Holmes’s essay as part of the genre of evolutionary jurisprudence, to which it belongs