Tuesday, September 18, 2012
The nowadays universal 'slayer rule' is based on considerations of autonomy and public policy. It is the subject of the detailed and thoughtful section 45 of Restatement Third Restitution. Different answers were given in different periods, among them biblical times, to the question whether a slayer could inherit the testator he had killed. The complexity of the matter is rooted in the different perceptions regarding the limits of law, the relations between the legislator and the judiciary, the tensions between text and context; rules and standards; public and private spheres and criminal and private sanctions. The contradictory considerations behind the rule lead to conflicting proposals either to expand or to restrict its application. But the whole question is much wider. It concerns the proper scope of the principle of 'ex turpi causa' in private law and the need to regulate by rules some intriguing questions of corrective, distributive and retributive justice.