Introductory description

Advanced study of the philosophical foundations of contracts and torts.

Module web page

Module aims

Outline syllabus

This is an indicative module outline only to give an indication of the sort of topics that may be covered. Actual sessions held may differ.

Part One – General Issues

1. Public and Private Wrongdoing
2. Theories of Harm
3. Strict and Fault-Based Liability
4. Instrumentalist and Non-Instrumentalist Theories of Compensation

Part Two – Specific Issues
5. Negligence
6. Defamation
7. Sexual Harassment
8. Promises
9. Duress

Learning outcomes

By the end of the module, students should be able to:

• Students should have an understanding of the debate over whether there is any principled distinction between public and private wrongdoing, and if so, how different wrongs should be categorised.
• Students should have a grasp of general theoretical issues in private law, for example: competing theories of harm, instrumental and non-instrumental accounts of private law, and strict and fault-based theories of liability.
• They should have some comprehension of specific normative issues in private law, for example: negligence, defamation, sexual harassment, promises, and duress.
• Students should be able to understand, summarise, and critically engage with theoretical argument about the distinction between public and private wrongdoing, and specific normative issues raised by private law.
• They should be able to relate their views about private law to more basic and fundamental ideas in moral philosophy.
• Students should be able to structure theoretical arguments to a high level and explore ideas in a group with reference to specific selected legal cases.
• Students should be able to formulate and evaluate philosophical arguments by appeal to normative concepts and considerations without sole reliance on legal doctrine.
• Students should also be able to relate this philosophical understanding to legal cases and doctrine in order to illuminate legal practice.

Indicative reading list

Week 1
Weinrib, ‘Understanding Private Law’ in The Idea or Private Law (Oxford University Press, 2012).
Ripstein, ‘Retrieving the Idea of a Private Wrong’ in Private Wrongs (Harvard University Press, 2016).
Edwards and Simester, ‘What’s Public about Crime?’ Oxford Journal of Legal Studies 37 (2017): 105-133.
Lee, ‘Public Wrongs and the Criminal Law’ Criminal Law and Philosophy 9 (2015): 155-170.

Week 2
Kaplow and Shavell, Fairness versus Welfare (Harvard University Press, 2006).
Coleman, ‘The Grounds of Welfare’, Yale Law Journal 112 (2003): 1511-1543.

Week 3
Vaughan v Menlove (1837) 132 ER 490.
Dorfman, ‘Reasonable Care: Equality as Objectivity’, Law and Philosophy, 31 (2012): 369-407.
Honoré, ‘Responsibility and Luck: The Moral Basis of Strict Liability’ in Responsibility and Fault (Hart Publishing, 2002).

Week 4
Youssoupoff v MGM Pictures (1934) 50 TLR 581.
McNamara ‘Moral Judgement and Conceptions of Reputation’, in Reputation and Defamation (Oxford University Press, 2007).
Milo, ‘Public Speech’, in Defamation and Freedom of Speech (Oxford University Press, 2009).

Week 5
Equality Act 2010 s. 26.
Mackinnon, ‘Beyond Moralism: Directions in Sexual Harassment Law’, in Women’s Lives, Men’s Laws (Harvard University Press, 2007).
Crouch, ‘Philosophical Foundations of Sexual Harassment’, in Thinking about Sexual Harassment: A Guide for the Perplexed (Oxford University Press, 2001).

Week 6
Reading week

Week 7
Smith v Hughes (1871) LR 6 QB 597.
Owens, ‘Which Promises Bind?’, in Shaping the Normative Landscape (Oxford University Press, 2014).
Shiffrin, ‘The Divergence of Contract and Promise’, Harvard Law Review 120 (2007): 708-53.

Week 8
Dimskall Shipping Co SA v International Transport Workers Federation, The Evia Luck (1992) 2 AC 152.
Smith, ‘Contracting Under Pressure: A Theory of Duress’, The Cambridge Law Journal 56 (1997): 343-373.
Locke, ‘Excusable Consent in Duress’, Legal Studies 37 (2017): 418-436.

Week 9
Bigwood, Exploitative Contracts, (Oxford: Oxford University Press, 2004)
Smith, ‘In Defence of Substantive Fairness’ (1996) 112 Law Quarterly Review 138-158

View reading list on Talis Aspire

Subject specific skills

No subject specific skills defined for this module.

Transferable skills

No transferable skills defined for this module.