Rights and Private Law

Rights and Private Law

by Donal Nolan, Andrew Robertson


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In recent years a strand of thinking has developed in private law scholarship which has come to be known as 'rights' or 'rights-based' analysis. Rights analysis seeks to develop an understanding of private law obligations that is driven, primarily or exclusively, by the recognition of the rights we have against each other, rather than by other influences 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 influence 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 significant 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.

Product Details

ISBN-13: 9781849461429
Publisher: Bloomsbury Academic
Publication date: 12/02/2011
Pages: 684
Product dimensions: 6.14(w) x 9.21(h) x 1.44(d)

About the Author

Donal Nolan is the Porjes Foundation Fellow and Tutor in Law at Worcester College, University of Oxford.Andrew Robertson is a Professor of Law at the University of Melbourne.

Table of Contents

Acknowledgements v

Contributors ix

Table of Cases xi

Table of Legislation xxv

Table of Treaties xxix

1 Rights and Private Law Donal Nolan Andrew Robertson 1

2 Rights in Private Law Peter Cane 35

3 Our Most Fundamental Rights Allan Beever 63

4 Social Purposes, Fundamental Rights and the Judicial Development of Private Law Francois du Bois 89

5 Rights and Other Things Robert Stevens 115

6 Beyond 'Right' and 'Duty': Lundstedt's Theory of Obligations TT Arvind 151

7 Of Rights Superstructural, Inchoate and Triangular: The Role of Rights in Blackstone's Commentaries Helge Dedek 183

8 Rule-Based Rights and Court-Ordered Rights Stephen A Smith 221

9 Rights and Responsibility in the Law of Torts John CP Goldberg Benjamin C Zipursky

10 Damages and Rights Andrew Burrows 275

11 Explaining the Inexplicable? Four Manifestations of Abuse of Rights in English Law JW Neyers 309

12 Rights and the Basis of Tort Law Nicholas J McBride 331

13 Is the Role of Tort to Repair Wrongful Losses? Gregory C Keating 367

14 The Edges of Tort Law's Rights Roderick Bagsbaw 407

15 Rights, Pluralism and the Duty of Care Andrew Robertson 435

16 'A Tort Against Land': Private Nuisance as a Property Tort Donal Nolan 459

17 Private Nuisance Law: A Window on Substantive Justice Richard W Wright 491

18 Rights and Wrongs: An Introduction to the Wrongful Interference Actions Sarah Green 525

19 Misfeasance in a Public Office: A Justifiable Anomaly within the Rights-Based Approach? Erika Chamberlain 553

20 Unjust Enrichment, Rights and Value Ben McFarlane 581

21 Rights and Value in Rescission: Some Implications for Unjust Enrichment Elise Bant 609

Index 639

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