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Can Law Survive Legal Education?

Ernest J. Weinrib

in Corrective Justice

This chapter deals with the disjunction between the practice of private law and its university study. This disjunction is the result of the prevailing instrumentalist approaches within the legal ... More

This chapter deals with the disjunction between the practice of private law and its university study. This disjunction is the result of the prevailing instrumentalist approaches within the legal academy, which efface the characteristic concepts of private law, ignore the direct relationship between the parties, and assimilate private law into public law. The chapter sketches a different mode of legal understanding that elucidates the character of private law in terms of the correlative structure of its relationships and the normative standpoint of personality that those relationships presuppose. It then traces the implications of this mode of understanding for the interdisciplinary turn that is a conspicuous feature of contemporary legal education. Interdisciplinary study of law requires that law itself be recognized as a distinct discipline. Coase's treatment of the classic nuisance cases in his celebrated article on social cost exemplifies the failure to accord law this recognition.Less

Correlativity

Ernest J. Weinrib

in The Idea of Private Law

In Aristotle's presentation of corrective justice, the correlativity of gain and loss is the organizing feature of liability. This chapter deals with what this correlativity means and how these gains ... More

In Aristotle's presentation of corrective justice, the correlativity of gain and loss is the organizing feature of liability. This chapter deals with what this correlativity means and how these gains and losses can be identified and seen as expressions of Kantian right. Two aspects of gain and loss must be distinguished: the factual and the normative. The gains and losses of corrective justice are normative rather than factual. They are correlative when the justificatory considerations at work are unifying, bipolar, and expressive of the parties' transactional equality. The Kantian conception of right and duty satisfies these requirements. This chapter explores the relationship between the normative and the factual and between rights and welfare. It concludes by applying the correlativity of right and duty to the reparation of tort and contract losses and to the restitution of gains.Less

Correlativity and Personality

Ernest J. Weinrib

in Corrective Justice

This chapter sets out the ideas that make up the structure and content of corrective justice. Corrective justice is the synthesis of two complementary abstractions: correlativity and personality. ... More

This chapter sets out the ideas that make up the structure and content of corrective justice. Corrective justice is the synthesis of two complementary abstractions: correlativity and personality. Correlativity articulates at the most general level the structure of the relationship between the interacting parties as doer and sufferer of the same injustice. Personality, i.e., the idea of purposiveness regardless of one's particular purposes, similarly articulates at the most general level the conception of the interacting parties that is presupposed in a regime of rights and correlative duties. Although personality has been elaborated by philosophers of natural right, such as Kant, its theoretical significance for private law lies not in its representing a sound philosophical account of rational agency, but in its being implicit in the law's doctrines and institutions.Less

Intellectual Property Law and Redressive Autonomy

Shyamkrishna Balganesh

in Oxford Studies in Private Law Theory: Volume I

Intellectual property law remains a body of private law, but for reasons that transcend its reliance on ideas and concepts from the common law of property and tort. This essay argues that the ... More

Intellectual property law remains a body of private law, but for reasons that transcend its reliance on ideas and concepts from the common law of property and tort. This essay argues that the connection between forms of intellectual property law and private law is rooted in a form of autonomy that characterizes private law regimes—known as “redressive autonomy.” It shows how a strong commitment to redressive autonomy undergirds the unique right–duty structure of intellectual property, informs intellectual property’s central doctrines, and injects an additional layer of normative complexity into its functioning.Less

Moral Rights

Michael J. Zimmerman

in Ignorance and Moral Obligation

In this chapter, some implications that The Prospective View of moral obligation has regarding the nature of moral rights are addressed. The Correlativity Thesis, which holds that moral rights are ... More

In this chapter, some implications that The Prospective View of moral obligation has regarding the nature of moral rights are addressed. The Correlativity Thesis, which holds that moral rights are correlative to moral obligations, is defended. It is argued that the possession of moral rights is precarious, being dependent on the evidence possessed by others. Several objections to this argument are entertained and rebutted. The distinction between rights and desert is stressed, and the relevance of risk to rights is explored.Less

Obligations of Gratitude and Correlative Rights

Tony Manela

in Oxford Studies in Normative Ethics, Volume 5

This chapter investigates a puzzle about gratitude which arises from three platitudes about gratitude: 1) the beneficiary has certain obligations of gratitude; 2) these obligations are owed to the ... More

This chapter investigates a puzzle about gratitude which arises from three platitudes about gratitude: 1) the beneficiary has certain obligations of gratitude; 2) these obligations are owed to the benefactor; and 3) the benefactor has no right to the fulfillment of these obligations. These platitudes suggest that gratitude is a counterexample to the claim that strict moral obligations correlate to moral rights on the part of the person to whom the obligation is owed. This chapter argues that the three platitudes are true, and, with respect to the “correlativity” claim, that while benefactors lack standing to demand, they do possess an imperfect right to gratitude: a special and morally significant standing to remonstrate with ungrateful beneficiaries. These facts suggest a modification of the standard correlativity thesis: moral obligations entail moral rights on the part of the person to whom they are owed, which may be perfect (demandable) or imperfect.Less

The Idea of the Moral Community

Henry Richardson

in Articulating the Moral Community: Toward a Constructive Ethical Pragmatism

This chapter explicates the idea of the moral community as the open-ended set of all individuals who can wrong or be wronged by another. Examining these ideas of wronging someone or being wronged by ... More

This chapter explicates the idea of the moral community as the open-ended set of all individuals who can wrong or be wronged by another. Examining these ideas of wronging someone or being wronged by someone as dyadic ideas, intrinsically involving a moral relationship between two persons, the discussion casts this kind of relationship as structuring the moral community. Dyadic norms, which give rise to directed rights and duties, give that structure definite generality and firmness. Distinguishing norms that merely mention another person (“A ought to compensate B”) from truly directed or dyadic norms (“A owes it to B to compensate B”), the text notes the metaphysically demanding sort of ontological correlativity that holds between directed duties and the corresponding rights. This, in turn, sets the stage for an important challenge posed by Michael Thompson—namely, how to explain what unites all persons into one moral community.Less

Authoritative Input: Dyadic Duties and Rights

Henry Richardson

in Articulating the Moral Community: Toward a Constructive Ethical Pragmatism

This chapter shows that the input stage of the moral community’s exercise of its moral authority arises from the delimited moral power of duty-holders (alone or in concert with the correlative ... More

This chapter shows that the input stage of the moral community’s exercise of its moral authority arises from the delimited moral power of duty-holders (alone or in concert with the correlative right-holders) to specify their duty. To establish this claim, the chapter defends the Specificatory Theory of dyadic rights and duties. Like H. L. A. Hart’s Will Theory (and unlike Joseph Raz’s Interest Theory and Leif Wenar’s Kind-Desire Theory), this theory sets out to explain the existence of ontologically correlative rights and duties. It argues that these arise when the social division of moral labor addresses responsibilities regarding individuals’ monadic moral rights to specific individuals. These individuals are called upon intelligently to specify the content of their duty—a fact that explains ontological correlativity. This theory is shown to deal better with counterexamples than the Will Theory and to well support the requirements of the input stage.Less

Introduction

Rowan Cruft

in Human Rights, Ownership, and the Individual

The aim of the book—to offer a philosophical assessment of the concept of a right—is introduced, along with terminological distinctions. Chapter 1 defends the author’s Hohfeldian assumption that all ... More

The aim of the book—to offer a philosophical assessment of the concept of a right—is introduced, along with terminological distinctions. Chapter 1 defends the author’s Hohfeldian assumption that all claim-rights entail correlative duties owed to the right-holder. The chapter ends by clarifying the idea of a ‘natural’ right as simply a right that exists independently of anyone recognizing that it exists. So conceived, natural rights need imply neither a theistic nor a ‘state of nature’ grounding, and can include many rights protecting our sociality.Less

Old and New Liberalism

George Klosko

in The Transformation of American Liberalism

Lockean political ideas, including problems with negative and positive rights, and correlativity in regard to the latter. Comparison with new liberalism of T. H. Green and L. T. Hobhouse.