Instructor(s): Peter Benson

For graduate students, the course number is LAW5044HF.

Note: Familiarity with philosophy is not presupposed.

Note: The Blackboard program will be used for this course. Students must self-enrol in Blackboard as soon as confirmed in the course in order to obtain course information.

The main aim of the course is to explore the theory of private law. It assumes that it is not enough merely to know the principles of private law (property, contract, tort, and unjust enrichment) and how to apply them. It is also important to see how they fit together and whether they reflect a moral conception that is reasonable and generally acceptable to free and equal citizens in a modern liberal democracy. It is especially important that any justification of private law takes seriously the fact that its duties and responsibilities are enforced by legal coercion (by awards of damages, specific performance, injunctions and so forth). Our theory must be able to show that this is legitimate. Given this framework, it is arguably essential to demonstrate, first and foremost, that private law principles are just and fair as between plaintiffs and defendants, and not merely efficient or socially desirable. This raises the crucial question of what kind of justice is embodied in private law. Also, what are the limits of private law justice? And is justice in private law consistent with other considerations such as efficiency or social and economic justice? We approach these issues by considering systematically the basic foundational principles of property, contract, wrongdoing, etc.

To help us explore these and related questions, we turn for guidance to some of the most enduring writings on legal theory and legal philosophy. The objective is to go slowly and carefully in order to bring out as clearly as possible the strength and scope of the arguments in these texts. Readings are limited to allow for this. These are truly fascinating texts that will deeply affect the way you understand the significance of private law and of law in general.

I wish to emphasize – in fact to guarantee -- that the course as a whole – including the presentation of texts, lectures, class discussions, and evaluation – presupposes no background whatsoever in philosophy of any kind or in legal theory. All that it assumes is a familiarity with private law (first year law curriculum) and a willingness to engage and work with the texts and their arguments. In the past, students with no previous background have excelled. In previous years, the texts have included Aristotle, Kant, Hegel, and Sidgwick as well as some contemporary authors, with special emphasis on Hegel.

Evaluation
Students may do either of the following: 1. Write a paper of about 6,800 words (100%). Paper topics should be discussed in advance with the instructor. If submitted on a timely basis, drafts will be read and commented upon. OR 2. Write three shorter papers (each about 2,300 words) (100%). The three-essay format is drawn from questions distributed to students during the term, well before the exam period. Questions are based only on course readings and discussions and require no additional or outside reading. This format is geared to allow students to focus exclusively on course readings, secure in the knowledge that their efforts to come to terms with the texts will be directly reflected in their mode of evaluation. Students may satisfy the Perspective Requirement and complete a SUYRP in this course.

At a Glance

First Term
Credits
3
Hours
3
SUYRP
Perspective course

Enrolment

Maximum
20

17 JD
3 LLM/SJD/MSL/NDEGS/SJD U

Schedule

T: 10:30 - 11:45
Th: 10:30 - 11:45