Philosophical Foundations of the Common Law

This course explores the philosophical principles which may be thought to underlie the major doctrines in each of the branches of the common law with which it is concerned – contract, tort, and the criminal law – as well as the relationships between them.

Do notions such as personal autonomy, causation, intention, justice, harm... (etc.), which figure in all three areas, lend them genuine doctrinal unity, or do these branches of the law represent different (complementary or conflicting) moral or political 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, pursues efficiency or some other goal, or is it the case that no underlying principles can be discerned? Are there interesting theoretical links between analogous doctrines or concepts to be found in these branches of the law, such as remedies, defences, excuses, freedom? -These are some of the issues explored in this course.

The course presupposes some knowledge of the basic doctrines of contract, tort, and criminal law, but not necessarily in much detail.

Assessment is by way of an examination.