Philosophical Foundations of the Common Law
This course explores the principles which may be thought to underlie each of the three areas it is concerned with – contract, tort, and the criminal law – and the relations between them.
Do notions such as causation, intention and foresight, which figure in all three areas, lend them doctrinal unity, or do these branches of the law represent different (complementary or conflicting) principles? For example: can one or other of them be understood as embodying principles of corrective justice, while the others are based on considerations of distributive justice? Does the law, in these areas, reflect moral concerns, or pursue efficiency or some other goal, or is it the case that no underlying principles can be discerned? Does the law make sense only in the light of certain assumptions about the nature of persons (e.g. that they are rational choosers, that they are autonomous beings)? These are some of the issues explored in this course.
The course presupposes knowledge of the basic doctrines of contract, tort, and criminal law. While some philosophical background might be helpful, it is not essential.