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This comprehensive Research Handbook provides an unparalleled
overview of contemporary private law theory. Featuring original
contributions by leading experts in the field, its extensive
examinations of the core areas of contracts, property and torts are
complemented by an exploration of a breadth of topics that cross
the divide between private and public law, including labor law and
corporate law. Beginning with a nuanced consideration of the ways
in which the private/public distinction has been defined and
discussed over time, the Research Handbook investigates and
compares differing viewpoints on the concept of private law.
Chapters explore key issues in the theory of private law from
legal, economic, philosophical, political, feminist, historical and
sociological perspectives, utilising a rich diversity of
methodological approaches. The contributors also offer a variety of
views on the future of private law and private theory. The Research
Handbook on Private Law Theory will be an essential resource for
legal thinkers, in particular scholars and graduate students
working in any area of private law. Its varied perspectives on the
subject will also be of interest to philosophers, political
scientists, economists and sociologists.
Property enhances autonomy for most people, but not for all.
Because it both empowers and disables, property requires constant
vigilance. A Liberal Theory of Property addresses key questions:
how can property be justified? What core values should property law
advance, and how do those values interrelate? How is a liberal
state obligated to act when shaping property law? In a liberal
polity, the primary commitment to individual autonomy dominates the
justification of property, founding it on three pillars: carefully
delineated private authority, structural (but not value) pluralism,
and relational justice. A genuinely liberal property law meets the
legitimacy challenge confronting property by expanding people's
opportunities for individual and collective self-determination
while carefully restricting their options of interpersonal
domination. The book shows how the three pillars of liberal
property account for core features of existing property systems,
provide a normative vocabulary for evaluating central doctrines,
and offer directions for urgent reforms.
Property enhances autonomy for most people, but not for all.
Because it both empowers and disables, property requires constant
vigilance. A Liberal Theory of Property addresses key questions:
how can property be justified? What core values should property law
advance, and how do those values interrelate? How is a liberal
state obligated to act when shaping property law? In a liberal
polity, the primary commitment to individual autonomy dominates the
justification of property, founding it on three pillars: carefully
delineated private authority, structural (but not value) pluralism,
and relational justice. A genuinely liberal property law meets the
legitimacy challenge confronting property by expanding people's
opportunities for individual and collective self-determination
while carefully restricting their options of interpersonal
domination. The book shows how the three pillars of liberal
property account for core features of existing property systems,
provide a normative vocabulary for evaluating central doctrines,
and offer directions for urgent reforms.
Modern statesmen and political theorists have long struggled to
design institutions that will simultaneously respect individual
freedom of religion, nurture religion's capacity to be a force for
civic good and human rights, and tame religion's illiberal
tendencies. Moving past the usual focus on personal free expression
of religion, this illuminating book - written by renowned scholars
of law and religion from the United States, England, and Israel -
considers how the institutional design of both religions and
political regimes influences the relationship between religious
practice and activity and human rights. The authors examine how the
organization of religious communities affects human rights, and
investigate the scope of a just state's authority with respect to
organized religion in the name of human rights. They explore the
institutional challenges posed by, and possible responses to, the
fraught relationship between religion and rights in the world
today.
This concise landmark in law and jurisprudence offers the first
coherent, liberal account of contract law. The Choice Theory of
Contracts answers the field's most pressing questions: what is the
'freedom' in 'freedom of contract'? What core values animate
contract law and how do those values interrelate? How must the
state act when it shapes contract law? Hanoch Dagan and Michael
Heller - two of the world's leading private law theorists - show
exactly why and how freedom matters to contract law. They start
with the most appealing tenets of modern liberalism and end with
their implications for contract law. This readable, engaging book
gives contract scholars, teachers, and students a powerful
normative vocabulary for understanding canonical cases, refining
key doctrines, and solving long-standing puzzles in the law.
Dagan's book provides a dynamic and much needed account of the
American law of restitution. The book reviews the existing
doctrine, including the forthcoming (third) Restatement, using an
ethical perspective to expose and examine critically the normative
underpinnings of the core categories of restitution. Dagan also
discusses some of the most controversial issues in the area, such
as cohabitation, improper tax payments, and the role of
constructive trusts as trumps in bankruptcy. He further tackles the
recent restitution claims of slave laborers (or their descendants)
against corporations that benefited from their enslavements, and of
governmental bodies against injurious industries. Dagan argues that
the concept of unjust enrichment is not an independent reason for
restitution but, rather, serves as a loose framework, structuring
the contextual application of commitments to autonomy, utility, and
community in situations where either the cause of action or the
measure of recovery is benefit-based. By integrating doctrinal and
ethical analyses of restitution across the spectrum of restitution
contexts, the author offers significant and provocative insights on
existing law as well as possible reforms.
This concise landmark in law and jurisprudence offers the first
coherent, liberal account of contract law. The Choice Theory of
Contracts answers the field's most pressing questions: what is the
'freedom' in 'freedom of contract'? What core values animate
contract law and how do those values interrelate? How must the
state act when it shapes contract law? Hanoch Dagan and Michael
Heller - two of the world's leading private law theorists - show
exactly why and how freedom matters to contract law. They start
with the most appealing tenets of modern liberalism and end with
their implications for contract law. This readable, engaging book
gives contract scholars, teachers, and students a powerful
normative vocabulary for understanding canonical cases, refining
key doctrines, and solving long-standing puzzles in the law.
In the myriad choices of interpretation judges face when confronted
with rules and cases, legal realists are concerned with how these
doctrinal materials carry over into judicial outcomes. What can
explain past judicial behavior and predict its future course? How
can law constrain judgments made by unelected judges? How can the
distinction between law and politics be maintained despite the
collapse of law's autonomy in its positivist rendition? In
Reconstructing American Legal Realism & Rethinking Private Law
Theory, Hanoch Dagan provides an innovative and useful
interpretation of legal realism. He revives the legal realists'
rich account of law as a growing institution accommodating three
sets of constitutive tensions-power and reason, science and craft,
and tradition and progress-and demonstrates how the major claims
attributed to legal realism fit into this conception of law. Dagan
seeks to rein in realist descendants who have become fixated on one
aspect of the big picture, and to dispel the misconceptions that
those gone astray represent the tradition accurately or that
realism is now merely a historical signpost. He draws upon the
realist texts of Oliver Wendell Holmes, Karl Llewellyn, and others
to explain how legal realism offers important and unique
jurisprudential insights that are not just a part of legal history,
but are also relevant and useful for a contemporary understanding
of legal theory. Building on this realist conception of law and
enriching its texture, Dagan addresses more particular
jurisprudential questions. He shows that the realist achievement in
capturing law's irreducible complexity is crucial to the
reinvigoration of legal theory as a distinct scholarly subject
matter, and is also inspiring for a host of other, more specific
theoretical topics, such as the rule of law, the autonomy and
taxonomy of private law, the relationships between rights and
remedies, and the pluralism and perfectionism that typify private
law.
Property: Values and Institutions, by Hanoch Dagan, offers an
original understanding of property, different from the dominant
voices in the field, yet loyal to the practice of property. It
rejects the misleading dominant binarism in which property is
either one monistic form, structured around Blackstone's (in)famous
formula of sole and despotic dominion, or a formless bundle of
rights. Instead, it conceptualizes property as an umbrella for a
set of institutions bearing a mutual family resemblance. It resists
the prevailing tendency to discuss property through the prism of
only one particular value, notably efficiency. Dagan argues that
property can, and should, serve a pluralistic set of liberal
values. These property values include not only autonomy and
utility, which are emphasized by many contemporary scholars, but
also labor, personhood, community, and distributive justice.
Dagan claims that property law, at least at its best, tailors
different configurations of entitlements to different property
institutions, with each such institution designed to match the
specific balance between property values best suited to its
characteristic social setting. Dagan develops this theoretical
account and applies it to key doctrinal contexts. In particular, he
analyzes the normative underpinnings of the doctrines regulating
the interactions between landowners and governments (both eminent
domain and regulatory takings doctrines) and those regulating the
governance of property owned by multiple owners (such as
co-ownership, marital property, and the law of common interest
communities).
This book is a sophisticated comparative analysis of the doctrine
of unjust enrichment in the North American and Jewish legal
systems, and in international law. By offering an explanatory
theory which brings to light the normative underpinnings of the
doctrine, it facilitates the prediction of legal outcomes and
supplies the necessary tools for evaluating existing legal rules.
Applying both theoretical analysis and comparative legal
techniques, the study claims that the choice of compensation
arising from a claim of unjust enrichment is not a matter of legal
technicality. Instead it describes how the legal choice of a
pecuniary remedy can be seen to embody a choice between competing
values. This decision, writes Dagan, is implicated in the
prevailing background ethos of the society at issue, and is deeply
influenced by its own complex conceptions of self and of community.
Modern statesmen and political theorists have long struggled to
design institutions that will simultaneously respect individual
freedom of religion, nurture religion's capacity to be a force for
civic good and human rights, and tame religion's illiberal
tendencies. Moving past the usual focus on personal free expression
of religion, this illuminating book - written by renowned scholars
of law and religion from the United States, England, and Israel -
considers how the institutional design of both religions and
political regimes influences the relationship between religious
practice and activity and human rights. The authors examine how the
organization of religious communities affects human rights, and
investigate the scope of a just state's authority with respect to
organized religion in the name of human rights. They explore the
institutional challenges posed by, and possible responses to, the
fraught relationship between religion and rights in the world
today.
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