The Remainder: Deserting Private Wrongs?
Civil Wrongs and Justice in Private Law, Oberdiek J & Miller P eds. (Oxford University Press, 2019).
28 Pages Posted: 29 Mar 2019 Last revised: 8 May 2019
Date Written: February 28, 2019
Abstract
Does private law exhibit a normative remainder? The absence of such a remainder would cut against the view of private law as a law of private wrongs. Or so I argue. The paper begins with elucidating the concept of “private wrong.” After which, a wrong-based model of private law is introduced. The idea of a normative remainder is then laid out along with an explanation of the connection between such remainders and wrongs. As explained below, a normative remainder is a normative loss or deficit that lingers even after a breach of duty is repaired. Given this connection between wrongs and remainders, the paper poses the following challenge to the private wrongs model of private law: does private law involve remainders? Upon combing through what appear the most relevant bits of the law, my somewhat tentative conclusion is that, as it stands, the law does not seem to indicate a sufficient measure of remainders to bolster the private wrongs model of private law. In a ditch attempt at saving private wrongs, the paper then turns to reflecting on possible explanations for the dearth of legal remainders in private law that are, nevertheless, still consistent with the private wrongs view of private law. The paper closes with some final remarks, suggesting that the wholly overlooked concept of “legal remainder” deserves more scholarly attention.
Keywords: private law theory, torts, private wrongs, wrongs, remainder, normative remainder
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