Robertson on Justifying Liabilities and Duties

Andrew Robertson has posted to SSRN Justifying Liabilities and Duties.  The abstract provides:

This chapter argues that a thorough consideration of the justifications for the law of obligations requires close attention to liability and duties in addition to rights. Liability provides an important frame of reference for any justificatory exercise in the law of obligations, for two reasons. The first is that, historically and as a matter of practice, the common law of obligations begins with, and focuses primarily on, liability rather than rights and duties. While it is possible, through careful study, to identify rights and duties in the common law, the common law is not imposed on us through the announcement of general rights or duties. The common law is explicated through judgments, and in private law cases those judgments mostly take the form of justifying liability or justifying the denial of liability. A focus on liability as a justificatory frame of reference reminds us of the context in which rights, duties and liabilities are identified, explicated, developed and enforced. It also reminds us of the role of the state and the interaction between the public interest, the goal of promoting social harmony and the conventional morality that underlies the law of obligations.

A second reason to consider liability as a frame of reference is that important questions of justification arise in relation to primary liabilities. Those questions will be left out of account in an analysis that focuses exclusively on rights and duties. This chapter uses the examples of equitable estoppel and the right to performance of a contractual promise to explore the difficulty that is encountered in determining the existence and significance of rights in the common law of obligations, and the difficulty that is encountered in drawing the boundary between right/duty relationships and liability/power relationships. The chapter sketches some ideas about possible justifications for two particularly controversial forms of primary liability: vicarious liability and equitable estoppel. The final part of the paper discusses the need to take account of duties in the analysis of justification in private law. The duty perspective raises the idea of behaviour guidance as a possible justification of the common law of obligations. In order to understand why private law cannot be seen as a set of ‘guidance rules’, we need to turn to the relationship between duties, rights and liability. The paper therefore concludes that a full understanding of justification can only be gained by taking account of liabilities, duties, and rights.