Private Law Theory

ABSTRACT
Recognizing Wrongs reflects an ongoing challenge within private law theory: once an ideal of interpersonal responsibility and accountability is recognised at private law’s centre, how are these dimensions of private law to be developed in a manner that does not unduly undermine systemic predictability and clarity? This article responds to this challenge from the perspective of property law and theory. It suggests that inspiration as to the kinds of core unifying values that could clarify private law’s obligational dimensions can be found in varied sources, including in Thomistic property thinking, with opportunities for identifying and developing interpersonal responsibilities already existing in property doctrine, for example in the law of servitudes. As we face urgent sustainability challenges, with their strong inter-generational dimensions, the article argues that scholars should think afresh about the need to clarify the moral basis of interpersonal responsibilities in respect of property, with the Thomistic focus on human sustenance providing one candidate for reasoning about ownership obligations.

Rachael Walsh, Specifying Interpersonal Responsibilities in Private Law: Property Perspectives, American Journal of Jurisprudence, volume 68, issue 2, October 2023, pages 141-151. Published: 15 June 2023.