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The Humanity of Private Law

Part I: Explanation

By: Nicholas McBride
Media of The Humanity of Private Law
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Published: 27-12-2018
Format: PDF eBook (?)
Edition: 1st
Extent: 296
ISBN: 9781509911974
Imprint: Hart Publishing
RRP: £35.99
Online price : £28.79
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About The Humanity of Private Law

The Humanity of Private Law presents a new way of thinking about English private law. Making a decisive break from earlier views of private law, which saw private law as concerned with wealth-maximisation or preserving relationships of mutual independence between its subjects, the author argues that English private law's core concern is the flourishing of its subjects.

- presents a critique of alternative explanations of private law;
- defines and sets out the key building blocks of private law;
- sets out the vision of human flourishing (the RP) that English private law has in mind in seeking to promote its subjects' flourishing;
- shows how various features of English private law are fine-tuned to ensure that its subjects enjoy a flourishing existence, according to the vision of human flourishing provided by the RP;
- explains how other features of English private law are designed to preserve private law's legitimacy while it pursues its core concern of promoting human flourishing;
- defends the view of English private law presented here against arguments that it does not adequately fit the rules and doctrines of private law, or that it is implausible to think that English private law is concerned with promoting human flourishing.

A follow-up volume will question whether the RP is correct as an account of what human flourishing involves, and consider what private law would look like if it sought to give effect to a more authentic vision of human flourishing.

The Humanity of Private Law is essential reading for students, academics and judges who are interested in understanding private law in common law jurisdictions, and for anyone interested in the nature and significance of human flourishing.

Table Of Contents

1. Introduction
1. Five Tough Cases
2. Three Explanations of Private Law
3. A Different Picture
4. Evaluating Private Law
2. An ABC of Private Law
1. Duty and Obligation
2. Rights
3. Liabilities
4. Powers and Disabilities
5. Interests
6. Functions
3. Human Flourishing I – The RP
1. The Nature of Flourishing
2. Finnis' Account
3. Four Modifications
4. The RP
4. Our Basic Obligations
1. The Basic Model
2. Two Objections
3. The Basic Obligations Claim
4. Protected Interests
5. Balancing Interests
6. Property Interests
5. The Law of Transactions
1. Gifts and Wills
2. Contracts
3. Trusts
4. Companies
5. Marriage
6. Encouragements to Transact
7. Coda: The Nature of Unjust Enrichment
6. Preserving Legitimacy
1. Conditions of Legitimacy
2. The Objective Standard of Care
3. Responses to Torts
4. Triangles
5. Rent-Seeking
6. Informality
7. Assessing the Explanation
1. Five Tough Cases Revisited
2. Strict Duties
3. Strict Liabilities
4. F and Legal History
5. The Kantian Challenge
6. Final Thought


“McBride's claim that a particular conception of Human Flourishing … possesses a better explanatory fit to the private law currently in force in England and Wales than, say, Law and Economics, private law Kantianism, and “private law Moralism” is itself novel and sufficiently motivated to make it worth reading the book.” –  Claudio Michelon, University of Edinburgh, Edinburgh Law Review

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