E. Voyiakis, Private Law and the Value of Choice, Oxford: Hart Publishing, 2017, 268 pp, hb £70.00.
| Author | Sandy Steel |
| DOI | http://doi.org/10.1111/1468-2230.12408 |
| Published date | 01 March 2019 |
| Date | 01 March 2019 |
bs_bs_banner
REVIEWS
E. Voyiakis,PrivateLawandtheValueofChoice, Oxford: Hart Publishing,
2017, 268 pp, hb £70.00.
This book offers a normative theory of tort and contract law. Its animating
idea is that tort and contract rules are justifiable to a person only if the burdens
they impose upon that person are sensitive in a certain way to the valuable
opportunities the person has under those rules. Voyiakis calls this the ‘value
of choice’ account of private law. For instance, legally enforcing a person’s
voluntary commitments will pass this justificatory test if people have reason to
value the opportunity to make and receive legally enforceable voluntary com-
mitments (2). This is a non-consequentialist theory because, even if a possible
rule would maximise a certain value (eg, well-being, or overall conformity
to duties), an individual may object it on the ground that it is not appropri-
ately sensitive to that person’s valuable opportunities (even if it improves the
number of valuable opportunities in the aggregate) (4). However, it diverges
from (most) existing non-consequentialist theories in that its central focus is
not moral rights or wrongs, but whether the imposition of a burden is sensitive
to a person’s valuable opportunities. Voyiakis skilfully develops this central idea
through examination of some central questions in the theory of private law.
The result is a novel and thought-provoking contribution to the theoretical
literature in this area.
Chapter 1 is concerned with the justification of ‘the burden of repair’.
Voyiakis does not define this idea, but it includes legal duties or liabilities to
compensate another in respect of a harm (9, implicitly suggests it includes other
kinds of duty). The aim of Chapter 1 (in conjunction with Chapter 3) is to
demonstrate that the fact that one person has wronged another is irrelevant
to the justification of the burden of repair. Call this claim the ‘irrelevance
thesis’. This thesis looks like a tough sell to tort lawyers who might be thought
implicitly to assume that wrongdoing is generative of duties of repair. Notice,
however, that the truth of the thesis is logically compatible with the claim that
duties of repair always arise after wrongdoing: Voyiakis’ claim is that the fact
of wrongdoing is not a normative reason for existence of a burden of repair.
Voyiakis could accept (though he does not) that wrongdoing is a condition for
a duty of repair, but not a normative reason for it.
Voyiakis’ argument for the irrelevance thesis consists, at least in part, in
pointing to the fact that many duties are justified independently of wrongdoing.
My duty to keep (some of) my promises is obviously justified independently
of my breaching my promise (and thereby wronging a person). Rather, what
justifies my keeping my promise are some set of considerations such as, possibly,
the expectation I have induced in another that I will behave in a certain way,
or the harm they will suffer if I do not act in that way, or the damage I will do
to a valuable institution if I fail to keep it. So, Voyiakis asks, why not also think
C2019 The Author. The Modern Law Review C2019 The Moder n LawReview Limited. (2019) 82(2) MLR 389–396
Published by JohnWiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 101 Station Landing, Medford, MA 02155, USA
To continue reading
Request your trial