Rights and Private Law

683 Pages·2012·2.344 MB·English

by  Donal Nolan, Andrew Robertson

RIGHTS AND PRIVATE LAW
In recent years a strand of thinking has developed in private law schol-
arship which has come to be known as ‘rights’ or ‘rights-based’ analysis.
Rights analysis seeks to develop an understanding of private law obliga-
tions that is driven, primarily or exclusively, by the recognition of the
rights we have against each other, rather than by other infl uences 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 infl uence 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 signifi cant 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.

Rights and Private Law
Edited by
Donal Nolan
and
Andrew Robertson
OXFORD AND PORTLAND, OREGON
2012
Published in the United Kingdom by Hart Publishing Ltd
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© The editors and contributors severally 2012
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Acknowledgements
This book had its origins in the Fifth Biennial Conference on the Law of
Obligations (Obligations V), which was co-hosted by the Faculty of Law
at the University of Oxford and Melbourne Law School and was held at
St Anne’s College, Oxford from 14–16 July 2010.
We would like to express our gratitude to the Faculty of Law at the
University of Oxford and to Melbourne Law School for supporting the
conference, and particularly to Timothy Endicott, Dean of the Faculty of
Law at the University of Oxford and to Michael Crommelin and James
Hathaway, former Deans of Melbourne Law School. For their work in con-
nection with the conference, we are grateful to Marianne Biese, M aureen
O’Neill, Steve Allen, Sadie Slater, Anne Currie and Bento De Sousa in
Oxford, as well as to Mardi Richardson, Genevieve Allan and Jessica
Sullivan in Melbourne. We are particularly grateful to James Goudkamp
for the enormous amount of time and energy which he put into assisting
us with the organisation of the conference, and to the Oxford graduate
students who helped to ensure the smooth running of the conference ses-
sions: Carmine Conte, Andrew Lodder, Aruna Nair, Jaani Riordan, Guy
Sela and David Winterton. Finally, we would like to thank Hart Publish-
ing, Cambridge University Press and Freshfi elds Bruckhaus Deringer for
their sponsorship of the conference, and Allan J Myers AO, QC for his
generous fi nancial support of the conference.
Our collaboration on the introductory chapter was facilitated by Mel-
bourne Law School’s International Research Visitors Scheme, and we are
grateful to Melbourne Law School for its support. Finally, we are enor-
mously grateful to Julia Wang for her extremely careful and thorough
editing of the manuscript.
Donal Nolan and Andrew Robertson
May 2011
v

Contents
Acknowledgements v
Contributors ix
Table of Cases xi
Table of Legislation xxv
Table of Treaties xxix
1. Rights and Private Law 1
Donal Nolan and Andrew Robertson
2. Rights in Private Law 35
Peter Cane
3. Our Most Fundamental Rights 63
Allan Beever
4. Social Purposes, Fundamental Rights and the Judicial
Development of Private Law 89
François du Bois
5. Rights and Other Things 115
Robert Stevens
6. Beyond ‘Right’ and ‘Duty’: Lundstedt’s Theory of
Obligations 151
TT Arvind
7. Of Rights Superstructural, Inchoate and Triangular:
The Role of Rights in Blackstone’s Commentaries 183
Helge Dedek
8. Rule-Based Rights and Court-Ordered Rights 221
Stephen A Smith
9. Rights and Responsibility in the Law of Torts 251
John CP Goldberg and Benjamin C Zipursky
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viii Contents
10. Damages and Rights 275
Andrew Burrows
11. Explaining the Inexplicable? Four Manifestations of Abuse of
Rights in English Law 309
JW Neyers
12. Rights and the Basis of Tort Law 331
Nicholas J McBride
13. Is the Role of Tort to Repair Wrongful Losses? 367
Gregory C Keating
14. The Edges of Tort Law’s Rights 407
Roderick Bagshaw
15. Rights, Pluralism and the Duty of Care 435
Andrew Robertson
16. ‘A Tort Against Land’: Private Nuisance as a Property Tort 459
Donal Nolan
17. Private Nuisance Law: A Window on Substantive Justice 491
Richard W Wright
18. Rights and Wrongs: An Introduction to the Wrongful
Interference Actions 525
Sarah Green
19. Misfeasance in a Public Offi ce: A Justifi able Anomaly
within the Rights-Based Approach? 553
Erika Chamberlain
20. Unjust Enrichment, Rights and Value 581
Ben McFarlane
21. Rights and Value in Rescission: Some Implications for
Unjust Enrichment 609
Elise Bant
Index 639
Contributors
TT Arvind is a Lecturer at York Law School, University of York.
Roderick Bagshaw is a Fellow and Tutor in Law at Magdalen College,
Oxford and a Lecturer at the Faculty of Law, University of Oxford.
Elise Bant is an Associate Professor of Law at the University of Mel-
bourne.
Allan Beever is a Professor of Law at the University of South Australia.
Andrew Burrows is Professor of the Law of England at the University of
Oxford and a Fellow of All Souls College, Oxford.
Peter Cane is Distinguished Professor of Law and the Director of Research
at the College of Law, Australian National University.
Erika Chamberlain is an Associate Professor at the Faculty of Law, Uni-
versity of Western Ontario.
Helge Dedek is an Assistant Professor at the Faculty of Law, McGill
University.
François du Bois is an Associate Professor and Reader in Private Law at
the University of Nottingham.
John CP Goldberg is a Professor of Law at Harvard Law School.
Sarah Green is a Fellow and Tutor in Law at St Hilda’s College, Univer-
sity of Oxford.
Gregory C Keating is the William T Dalessi Professor of Law and Philoso-
phy at the Gould School of Law, University of Southern California.
Nicholas J McBride is a Fellow of Pembroke College, Cambridge.
Ben McFarlane is a Reader in Property Law at the University of Oxford
and a Fellow and Tutor in Law at Trinity College, Oxford.
JW Neyers is an Associate Professor at the Faculty of Law, University of
Western Ontario.
Donal Nolan is the Porjes Foundation Fellow and Tutor in Law at Worces-
ter College, University of Oxford.
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