Private Law Theory

ABSTRACT
In this article, we focus on private law doctrines that invoke conscience to set standards for citizens in their dealings with each other. We argue that such conscience-based doctrines can — and should — provide guidance to transacting parties, so as to minimise the risk of unconscionable conduct arising in transactional settings. We argue that conscience-based doctrines might effectively achieve this objective by provoking moral reasoning on the part of transacting parties. We also argue that judges necessarily engage in moral reasoning when applying conscience-based doctrines in evaluating past conduct. When they do so, we contend, they should explain their decisions in terms that expose their own moral reasoning, thereby making clear the need for moral engagement on the part of transacting parties.

The Hon Justice Chris Maxwell AC and Matthew Harding, Private Law, Conscience and Moral Reasoning: The Role of the Judge, (2022) 46(1) Melbourne University Law Review 123.