The Humanity of Private Law. Part I: Explanation

293 Pages·2019·4.621 MB·English

by  Nicholas J McBride

THE HUMANITY OF PRIVATE LAW
PART I: EXPLANATION
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 independ-
ence between its subjects, the author argues that English private law’s core concern is the
flourishing of its subjects.
THIS VOLUME
• 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.
ii
The Humanity of Private Law
Part I: Explanation
Nicholas J McBride
HART PUBLISHING
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First published in Great Britain 2019
Copyright © Nicholas J McBride, 2019
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Names: McBride, Nicholas J., author.
Title: The humanity of private law / Nicholas J McBride.
Description: Oxford, UK ; Portland, Oregon : Hart Publishing, 2019. |
“Part I: Explanation.” | Includes index.
Identifiers: LCCN 2018039833 (print) | LCCN 2018040282 (ebook) |
ISBN 9781509911967 (Epub) | ISBN 9781509911950 (hardback : alk. paper)
Subjects: LCSH: Civil law—Social aspects—England.
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To Isabel
Nel mezzo del cammin di nostra vita
mi ritrova per una selva oscura
ché la diratta via era smarrita.
vi
PREFACE AND ACKNOWLEDGEMENTS
This book sets out a way of thinking about private law that I have been developing over
the last 15 years or so. A follow-up volume will ask ‘If we see the private law in this way
(as I think we should, as doing so gives us more understanding of, and insight into, private
law than any other view of private law), what should we make of it? Is it need of reform,
or – indeed – a reformation? Is it worth all the trouble involved in giving effect to it? Is it
in fact worth taking more trouble to give effect to it than we do at the moment?’ The focus
throughout this book will be on English private law, but the way of thinking about private
law developed in this book is easily capable of being adapted to the private law of other
common law jurisdictions, and perhaps even beyond that.
No way of thinking about private law can be developed in isolation. (Or, if it has, it is
unlikely to be of any value.) The view of private law set out in this book has been devel-
oped in conversation with a large number of fellow private law academics, for whose time,
companionship, and patience I am extremely grateful: Roderick Bagshaw, John Bell, Alan
Bogg, Peter Cane, Niamh Connolly, Tatiana Cutts, Paul Davies, John Goldberg, James
Goudkamp, Sarah Green, Julius Grower, Lusina Ho, John Murphy, Jason Neyers, James
Penner, Irit Samet, Rajiv Shah, Brian Sloan, Steve Smith, Jane Stapleton, Sandy Steel, Rob
Stevens, Andy Summers, Bill Swadling, Jason Varuhas, Charlie Webb, Fred Wilmot-Smith,
Sarah Worthington and Ben Zipursky. Alan, Tatiana, Paul, Julius, John, Rajiv, Brian, Steve,
Sandy, Andy and Fred kindly read various chapters from the book in draft form and made
numerous helpful suggestions for their improvement, as well as providing a huge amount
of encouragement.
Three of the greatest intellects I have had the pleasure of personally coming into contact
with have had a huge and obvious influence on this book. The three intellects belonged to
Peter Birks, Derek Parfit and Tony Weir. All are now sadly lost to us, though their books live
on, one hopes forever. This book could not have been written without the benefit of various
intellectual breakthroughs made in thinking about private law, which I have liberally taken
advantage of (though I hope always with proper acknowledgment). Those breakthroughs
were made by Steve Smith (on the relationship between duties and liabilities), Rob Stevens
(on the necessary implications of a transaction being invalid), Bill Swadling (on the nature
of a trust, and the effect of the various formality requirements in English law), and Ben
McFarlane (on how various rules and doctrines in private law play a legitimacy-preserving
role). As always, I am very grateful to my original teachers in Oxford, John Davies and
Hugh Collins, both of whom played a crucial role in stimulating my interest in private law.
Without their example and inspiration, it is doubtful whether this book would exist.
The same can be said of the dedicatee of this book, Isabel Haskey. Almost nothing could
be said to be closer to my heart than the desire to see this book (and its sequel) written
and read, but she certainly is. The same is true of her children, Ines and Luca, the dedica-
tees of the next volume. If this book were not dedicated to Isabel, it would be dedicated to
Pembroke College and my colleague, Trevor Allan, for their steadfast loyalty, support and
viii Preface and Acknowledgements
encouragement in the 20 odd years that it has been my privilege to teach at Pembroke. I am
also very grateful to Pembroke for allowing me the year’s leave in 2015–16 that allowed to
me to get going on this project. I also owe a special debt of gratitude to Hong Kong Univer-
sity, which has employed me to teach there in August and September each year for the past
few years. Large portions of this book were written while I was staying out in Hong Kong.
Hart Publishing should be especially acknowledged, not just for their help in produc-
ing this book (in particular, the help provided by Sinead Moloney, Kate Whetter, Savannah
Rado, Tom Adams and Helen Kitto) but also for the huge role it has played for slightly
longer than I have been teaching at Pembroke in promoting the study and understanding of
private law. I wish I could say how many Hart publications are cited in the following pages,
but there are so many it would be hopeless to attempt to count them. My final acknowledg-
ment is for Bill Asquith, who originally commissioned this book and was a huge support
throughout the writing of the book. Sadly, Bill left Hart to enter the civil service before he
could see this book through to publication. His choice to join the civil service was utterly in
line with his general dedication to promoting the public good. I hope this book makes the
kind of contribution to that cause of which he can be proud.
Those wondering about the cover should turn to page 30, n 136. Those wanting to
understand more about private law should read on.
Nick McBride
June 2018
TABLE OF CONTENTS
Preface and Acknowledgements .................................................................................................vii
Table of Cases ..............................................................................................................................xi
Abbreviations and Key Terms ...................................................................................................xix
1. Introduction ...............................................................................................................1
1. Five Tough Cases ..............................................................................................................2
2. Three Explanations of Private Law .................................................................................7
3. A Different Picture .........................................................................................................26
4. Evaluating Private Law ..................................................................................................32
2. An ABC of Private Law .............................................................................................35
1. Duty and Obligation ......................................................................................................35
2. Rights ...............................................................................................................................43
3. Liabilities .........................................................................................................................54
4. Powers and Disabilities ..................................................................................................63
5. Interests............................................................................................................................70
6. Functions .........................................................................................................................78
3. Human Flourishing I – The RP ................................................................................82
1. The Nature of Flourishing .............................................................................................82
2. Finnis’ Account ...............................................................................................................83
3. Four Modifications .........................................................................................................86
4. The RP ............................................................................................................................107
4. Our Basic Obligations ............................................................................................115
1. The Basic Model ...........................................................................................................115
2. Two Objections .............................................................................................................117
3. The Basic Obligations Claim .......................................................................................123
4. Protected Interests ........................................................................................................125
5. Balancing Interests .......................................................................................................127
6. Property Interests .........................................................................................................143
5. The Law of Transactions .........................................................................................154
1. Gifts and Wills ..............................................................................................................155
2. Contracts .......................................................................................................................162
3. Trusts ..............................................................................................................................173
4. Companies ....................................................................................................................177
5. Marriage ........................................................................................................................180