This collection contributes to a fundamentally important set of debates about the nature of private law. The essays consider whether private law should be seen as having goals and, if so, whether those goals are particular to private as opposed to public law. They consider the legitimacy of the pursuit of community welfare goals in private law and the place of instrumentalist thinking in private law scholarship. They explore the relationship between the pursuit of policy goals and the other influences that shape private law, such as the formal values of certainty, consistency and coherence and the need to do justice to the parties to particular disputes. The collection analyses the role that particular policy goals do and should play in particular private law doctrines, and contributes to debate about the relationship between community welfare goals and considerations of interpersonal morality arising from the interactions between individuals. The contributors are drawn from across the common law world and offer a diverse range of perspectives on the controversies under consideration.

Nearly twenty years after its original publication, The Idea of Private Law is widely recognized as a seminal contribution to legal philosophy, and one of the leading attempts to explain and justify the moral foundations of private law. Rejecting the functionalism popular among legal scholars, Ernest Weinrib advances the provocative idea that private law is an autonomous and non-instrumental moral practice, with its own structure and rationality. Weinrib draws on Kant and Aristotle to set out an approach to private law that repudiates the identification of law with politics or economics. Weinrib argues that private law is to be understood not as a mechanism for promoting efficiency but as a juridical enterprise in which coherent public reason elaborates the norms implicit in the parties' interaction. Private law, Weinrib tells us, embodies a special morality that links the doer and the sufferer of harm. Weinrib elucidates the standpoint internal to this morality, in opposition to functionalists, who view private law as an instrument in the service of external and independently justifiable goals. After establishing the inadequacy of functionalist approaches, Weinrib traces the implications of the formalism he proposes for our ideas of the structure, coherence, and normative grounding of private law. Furthermore, the author shows how this formalism manifests itself in the leading doctrines of private law liability. Finally, he describes the public but non-political role of the courts in articulating the special morality of private law. This revised edition makes accessible one of the major works of modern legal theory. It includes a new introduction by the author, looking back at the work, its origins, and its aspirations.

This book emanates from a duo-colloquium which explored the Europeanisation of private law in the context of efforts to consolidate the consumer acquis, the Draft Common Frame of Reference, the appointment of an Expert Group on a Common Frame of Reference in the area of European contract law, the passage of the Consumer Rights Directive and the proposed Common European Sales Law. This book, with fully updated contributions, critically reflects on whether the process of Europeanisation, which has shaped private law in the EU Member States, has now reached a significant turning point in its development, a point of punctuated equilibrium. Written by a team of leading authors, the topics covered will be of concern in all European legal systems and beyond.

This book is a collection of papers that address a fundamental question: What is the role of civil justice and civil procedure in the various national traditions in the contemporary world? The book presents striking differences among a range of countries and legal traditions, but also points to common trends and open issues. It brings together prominent experts, professionals and scholars from both civil and common law jurisdictions. It represents all main legal traditions ranging from Europe (Germanic and Romanic countries, Scandinavia, ex-Socialist countries) and Russia to the Americas (North and South) and China (Mainland and Hong Kong). While addressing the main issue – the goals of civil justice – the book discusses the most topical concerns regarding the functioning and efficiency of national systems of civil justice. These include concerns such as finding the appropriate balance between accurate fact-finding and the right to a fair trial within a reasonable time, the processing of hard cases and the function of civil justice as a specific public service. In the mosaic of contrasts and oppositions special place is devoted to the continuing battle between the individualistic/liberal approach and the collectivist/paternalistic approach – the battle in which, seemingly, paternalistic tendencies regain momentum in a number of contemporary justice systems.

"This book discusses developments in scholarship dedicated to reinvigorating the study of the broad domain of private law. This field, which embraces the traditional common law subjects-property, contracts, and torts-as well as adjacent, more statutory areas, such as intellectual property and commercial law, also includes important subjects that have been neglected in the United States but are beginning to make a comeback. The book particularly focuses on the New Private Law, an approach that aims to bring a new outlook to the study of private law by moving beyond reductively instrumentalist policy evaluation and narrow, rule-by-rule, doctrine-by-doctrine analysis, so as to consider and capture how private law's various features fit and work together, as well as the normative underpinnings of these larger structures. This movement is resuscitating the notion of private law itself in United States and has brought an interdisciplinary perspective to the more traditional, doctrinal approach prevalent in Commonwealth countries. The book embraces a broad range of perspectives to private law-including philosophical, economic, historical, and psychological- yet it offers a unifying theme of seriousness about the structure and content of private law."--

In recent years a strand of thinking has developed in private law scholarship which has come to be known as 'rights' or 'rights-based' analysis. Rights analysis seeks to develop an understanding of private law obligations that is driven, primarily or exclusively, by the recognition of the rights we have against each other, rather than by other influences on private law, such as the pursuit of community welfare goals. Notions of rights are also assuming greater importance in private law in other respects. Human rights instruments are having an increasing influence on private law doctrines. And in the law of unjust enrichment, an important debate has recently begun on the relationship between restitution of rights and restitution of value. This collection is a significant contribution to debate about the role of rights in private law. It includes essays by leading private law scholars addressing fundamental questions about the role of rights in private law as a whole and within particular areas of private law. The collection includes contributions by advocates and critics of rights-based approaches and provides a thorough and balanced analysis of the relationship between rights and private law.

The relationship between private and public law has long been the focus of critical attention, but recent years have seen the growing influence upon private law of statutory intervention, public regulation, corporate globalisation and constitutional and international human rights norms. Such developments increasingly call into question the capacity of private law reasoning to operate in isolation from public institutions and goals. Commencing with three contrasting visions of the nature and importance of distinctions between public and private in the modern day, this book traces a number of encounters between private law and 'public' values in key areas of private law doctrine, such as charity law, commercial law, tort law and class actions, across several jurisdictions. It examines the influence within these fields of public concepts and goals, such as behavioural modification, accountability and anti-discrimination norms, as well as the (reverse) influence that private law has upon ('public') human rights jurisprudence.

In the wake of the global financial crisis, investors have suffered significant losses as a result of breaches of conduct of business rules in the distribution of financial instruments. MiFID II introduced new disclosure, distribution and product governance rules to strengthen the protection of investors but, like MiFID I, did not harmonise the civil law consequences for their violation. This book asks whether, in spite of the silence of the EU legislators, the MiFID II conduct of business rules may produce civil law effects, enabling investors to enforce them against investment firms before national courts and alternative dispute resolution (ADR) mechanisms. Building on the case law of the CJEU, the book shows the conditions under which the breach of MiFID II conduct of business rules should give rise to a private law remedy, and what remedies would be compatible with EU law. MiFID II and Private Law is an essential contribution to academic research in EU and financial law and will be a key text for policy-makers and legal practitioners working in the field of investor protection regulation and mis-selling litigation.

"Civil wrongs occupy a significant place in private law. They are particularly prominent in tort law, but equally have a place in contract law, property and intellectual property law, unjust enrichment, fiduciary law, and in equity more broadly. For example, some tort theorists maintain that tort law is best understood as a (or perhaps the) law of civil wrongs and some contract law theorists maintain that breach of contract is a civil wrong. Civil wrongs are also a preoccupation of leading general theories of private law, including corrective justice and civil recourse theories. According to these and other theories, the centrality of civil wrongs to civil liability shows that private law is fundamentally concerned with the expression and enforcement of norms of justice appropriate to interpersonal interaction and association. Others, sounding notes of caution or criticism, argue that a preoccupation with wrongs and remedies has meant neglect of other ways in which private law serves justice, and ways in which private law serves values other than justice. The present volume comprises original papers written by a wide variety of legal theorists and philosophers exploring the nature of civil wrongs, their place in private law, and their relationship to other forms of wrongdoing. It should be of broad interest to lawyers and legal theorists as well as moral and political theorists"--

This book brings together a wide range of contributors from across the common law world to identify and debate the principal moral and systemic challenges facing private law in the remaining part of the twenty-first century. The various contributions identify serious problems relating to complexity and overload, threats to research and education, the law's unintelligibility, the unsatisfactory nature of the law reform process and a general lack of public engagement. They consider the respective future roles of statutes, codes, and judge-made law (in the form of both common law and equitable rules). They consider how best to organise the private law system internally, and how to co-ordinate it externally with other public and economic systems (human rights, regulation, insurance markets and social security frameworks). They address the challenges for private law presented by new forms of technology, and by modern demands for the protection of new and intangible forms of moral interest, such as interests in privacy, 'vindication' and 'personal choice'. They also engage with the critical contemporary debates about access to, and the privatisation of, civil justice. The work is designed as a source of inspiration and reference for private lawyers, as well as legislators, policy-makers and students.