TortsProf Blog

Editor: Christopher J. Robinette
Widener Univ. School of Law

A Member of the Law Professor Blogs Network

Thursday, August 28, 2014

McBride on Tort & Human Flourishing

Nicholas McBride (Cambridge) has posted to SSRN Tort Law and Human Flourishing.  The abstract provides:

This is the second in a loose ‘trilogy’ of three papers that I presented at successive Obligations conferences: Obligations V (at the University of Oxford, in 2010, on the theme of ‘Rights and Private Law’), Obligations VI (at the University of Western Ontario, in 2012, on the theme of ‘Challenging Orthodoxy’), and Obligations VII (at Hong Kong University, in 2014, on the theme of ‘Divergence and Convergence in Private Law’).

In this paper, I argue that giving effect to the ‘balanced approach’ to determining what rights we have that I set out in my paper on ‘Rights and the basis of tort law’ requires one to draw on a vision of what human flourishing entails, so that we can determine whether the benefit to A from finding that he has a particular right against B outweighs the burden that B will incur if we find that A has such a right against B. I go on to argue that the vision of human flourishing that underlies the law’s practice in determining what rights we have against each other is a very familiar one – one that is widely prevalent in the West and best set out in the writings of John Finnis. I go on to criticise this account of human flourishing as radically defective, and explain what difference adopting a sounder view of what human flourishing entails would have on what rights we are recognised as having against other people.

I hope that this paper and the other two papers in the trilogy will eventually form the basis of a book, to be called The Humanity of Private Law.

http://lawprofessors.typepad.com/tortsprof/2014/08/mcbride-on-tort-human-flourishing.html

Scholarship | Permalink

TrackBack URL for this entry:

http://www.typepad.com/services/trackback/6a00d8341bfae553ef01b8d05e848f970c

Listed below are links to weblogs that reference McBride on Tort & Human Flourishing:

Comments

Post a comment