Practical Reason and Private Law: Some Sketches

Abstract

Our common law rejected Roman law’s treatment of contractual and tortious obligations as property, but radicalized property rights by making their object abstract entities such as estates and trusts. By dealing in such entities’ existence or non-existence, and in the validity/fallacy of arguments about them, Property minimizes practical reasoning (about ends, means, the rightful, permitted, wrongful …), for a practical reason—to advance valuable ends such as stability and security and their fruits: prosperity (in principle for all), and independence in face of public power and oligarchical (or indeed democratic) groupthink. Part II illustrates this in a simple Trusts case. Tort, however, is private law-rules/principles for enforcing originally moral obligations to compensate for violating essentially moral but formally conventional and derivatively/technically legal obligations (of respect and care). Part III illustrates Tort’s private-law/moral character in dialectic with Goldberg and Zipursky. Part IV sketches Tort’s relevance to compensating for aspects and consequences of regulators’ failures to exercise morally/conventionally due care in executing public-law duties/powers to regulate makers, distributors or mandators of inherently dangerous medical means.