Deterrence in Private Law

H Psarras and S Steel (eds), Private Law and Practical Reason: Essays on John Gardner's Private Law Theory (OUP, 2023)

20 Pages Posted: 28 Apr 2023

Date Written: April 17, 2023

Abstract

Non-consequentialist justifications of private law liability foreground the role of the law in setting out, part-constituting, and providing enforcement of interpersonal moral rights and duties at the suit of right-holders. The justificatory role of deterrence is either explicitly rejected or hardly mentioned. The impression given is that deterrence is somehow necessarily inconsistent with the justificatory role of interpersonal moral rights and duties. My aim in this paper is to show that this is not the case. I try to outline a general account of the normative role of deterrence in the justification of private law norms and enforcement. In making this argument, I will ultimately be affirming Gardner’s view that deterrence matters, non-trivially, to private law, while not being the whole story, or even the most important story.

Keywords: Rights, Deterrence, Private Law, Non-Consequentialism, Justice, Tort, Contract

Suggested Citation

Steel, Sandy, Deterrence in Private Law (April 17, 2023). H Psarras and S Steel (eds), Private Law and Practical Reason: Essays on John Gardner's Private Law Theory (OUP, 2023), Available at SSRN: https://ssrn.com/abstract=4421077 or http://dx.doi.org/10.2139/ssrn.4421077

Sandy Steel (Contact Author)

University of Oxford ( email )

Oxford, Oxfordshire OX1 4AU
United Kingdom

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