Research Handbook on Private Law Theory最新文献

{"title":"Outline of a public justification of contract law","authors":"P. Benson","doi":"10.4337/9781788971621.00010","DOIUrl":"https://doi.org/10.4337/9781788971621.00010","url":null,"abstract":"","PeriodicalId":157742,"journal":{"name":"Research Handbook on Private Law Theory","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123867524","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Autonomy and property","authors":"Hanoch Dagan","doi":"10.2139/ssrn.3454449","DOIUrl":"https://doi.org/10.2139/ssrn.3454449","url":null,"abstract":"The main claim of this Essay, prepared for the Research Handbook on Private Law Theories, is that only grounding property in liberalism’s fundamental commitment to individual self-determination can secure its legitimacy. I do not deny that property systems assign private authority over resources in numerous different ways. But appreciating the heavy legitimacy burden which haunts property implies that for owners’ authority to be justified, property must both rely upon and be guided by its service of people’s right to self-determination, which is – in a liberal polity – our most fundamental right. This means that in a liberal polity the commitment to individual autonomy does not only dominate property’s justification. It also significantly shapes property’s constitution and thus grounds its most fundamental legal features. \u0000 \u0000The essay offers a sketch of this distinctively liberal conception of property, which I develop more fully in my book, A Liberal Theory of Property (forthcoming 2020). I begin by discussing the way in which property both empowers and disables, enhances people’s autonomy and renders them vulnerable. This implies that a background regime that secures for everyone the preconditions of autonomy – health, education, and means of subsistence, as well as property – is necessary for property to be legitimate. But it is not sufficient. In a genuinely liberal polity, law follows the three pillars of the autonomy-enhancing conception of property: \u0000 \u0000(1) it carefully circumscribes owners’ private authority so that it follows its contribution to self-determination; \u0000 \u0000(2) it includes a structurally pluralist inventory of property types so as to offer people real choice; and \u0000 \u0000(3) it follows the prescriptions of relational justice so as to ensure that ownership does not offend the maxim of reciprocal respect for self-determination on which property’s legitimacy is grounded. \u0000 \u0000By founding property on people’s right to self-determination, a genuinely liberal law insists that property must comply with these three pillars: carefully delineated private authority, structural pluralism, and relational justice. There are admittedly (sometimes significant) gaps between the ideal of liberal property and the life of property in liberal societies. These blemishes, however, offer the theory’s most valuable promise, because they must be treated as a source of internal critique. They point out to the most urgent remedial action that is needed for property law in order for it to conform with its autonomy-enhancing premise.","PeriodicalId":157742,"journal":{"name":"Research Handbook on Private Law Theory","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134455246","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The human flourishing theory","authors":"G. Alexander","doi":"10.2139/ssrn.3536381","DOIUrl":"https://doi.org/10.2139/ssrn.3536381","url":null,"abstract":"The justification for private property is, of course, and has long been a contested topic. Historically, there have been several rival accounts of the moral foundation of property, including Locke’s labor theory and Hegel’s personality theory. Today, two are especially prominent, the libertarian, including rights-based, and utilitarian, including law-and-economics, theories. Both of these theories have long historical pedigrees, and in their modern incarnations each has generated several variations. \u0000 \u0000Over the past decade or so, I, both individually and with Eduardo Penalver, have developed an alternative to these two dominant accounts of property, which I have called the human flourishing theory. The human flourishing theory of property provides the best account of the value constitution that underpins the structure of modern property law. It is also the most morally attractive account of property, both as a concept and as an institution. It draws inspiration from Aristotle, but significant differences exist between the human flourishing theory that I shall describe here and Aristotle’s account of human flourishing in the Nicomachean Ethics.","PeriodicalId":157742,"journal":{"name":"Research Handbook on Private Law Theory","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-02-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122630596","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Private law and the rule of law","authors":"Lisa M. Austin, D. Klimchuk","doi":"10.1093/ACPROF:OSO/9780198729327.001.0001","DOIUrl":"https://doi.org/10.1093/ACPROF:OSO/9780198729327.001.0001","url":null,"abstract":"Introduction PART 1: THE PRIVATE LAW CONTRIBUTION TO THE RULE OF LAW 1. Fidelity in Law's Commonwealth 2. The Rule of Law and Private Law 3. The Rule of Law as the Rule of Private Law 4. Liberty and Legal Form 5. Unseating Unilateralism 6. Torts and the Rule of Law 7. Private Law Pluralism and the Rule of Law PART II: THE RULE OF LAW CONTRIBUTION TO PRIVATE LAW 8. Strict Duties and the Rule of Law 9. Some Rule-of-Law Anxieties about Strict Liability in Private Law 10. Property, Equity, and the Rule of Law 11. Equity and the Rule of Law 12. The Power of the Rule of Law 13. Boilerplate: A Threat to the Rule of Law? 14. The Rule of Law and Time's Arrow","PeriodicalId":157742,"journal":{"name":"Research Handbook on Private Law Theory","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126844980","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Tort as yet another locus of gender injustice in the distribution of money","authors":"Anita Bernstein","doi":"10.4337/9781788971621.00025","DOIUrl":"https://doi.org/10.4337/9781788971621.00025","url":null,"abstract":"","PeriodicalId":157742,"journal":{"name":"Research Handbook on Private Law Theory","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128546596","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"PROPERTY","authors":"","doi":"10.4337/9781788971621.00013","DOIUrl":"https://doi.org/10.4337/9781788971621.00013","url":null,"abstract":"","PeriodicalId":157742,"journal":{"name":"Research Handbook on Private Law Theory","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123624922","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"TORTS","authors":"Gerald J. Bobango","doi":"10.4337/9781788971621.00021","DOIUrl":"https://doi.org/10.4337/9781788971621.00021","url":null,"abstract":"","PeriodicalId":157742,"journal":{"name":"Research Handbook on Private Law Theory","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132455394","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Corrective justice","authors":"Arthur Ripstein","doi":"10.4337/9781788971621.00022","DOIUrl":"https://doi.org/10.4337/9781788971621.00022","url":null,"abstract":"","PeriodicalId":157742,"journal":{"name":"Research Handbook on Private Law Theory","volume":"76 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132260293","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"THE DOMAIN OF PRIVATE LAW: EXTENSION AND REFLECTION","authors":"","doi":"10.4337/9781788971621.00029","DOIUrl":"https://doi.org/10.4337/9781788971621.00029","url":null,"abstract":"","PeriodicalId":157742,"journal":{"name":"Research Handbook on Private Law Theory","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130540214","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}