Alan Brudner

The unity of the common law

PART 1 1. The Crisis of Private Law 2. Private Law and Kantian Right PART 2 3. The Unity of Property Law 4. Reconstructing Contracts 5. Agency and Autonomy in Unjust Enrichment Law 6. Recovering Tort Law PART 3 7. Idealism and Fidelity to Law 8. The New Private Law

SUBJECTIVE FAULT FOR CRIME: A Reinterpretation *

This essay develops a liberal account of the mens rea requirement of criminal liability and identifies the fault level required by that account. By “a liberal account” is meant one that interprets the meaning of mens rea in a way that reconciles liability to coercion with the individuals inviolability. The article argues that the wrongdoers choice to interfere or to risk interfering with another agents capacity to act on his own ends is the level of fault required to make punishment implicitly self-imposed by the recipient and thus distinguishable from the wrongdoers violence. Such a choice is one to which a denial of rights of agency may be logically imputed, a denial by which the wrongdoer implicitly authorizes his own coercibility. This version of subjectivism is, I argue, invulnerable against criticisms leveled against other versions. While staking out defensible subjectivist ground, the article criticizes the character, choice, and opportunity theories of mens rea proposed by Fletcher, Moore, and Hart, and elaborates the interpretations of exculpatory conditions flowing from the subjectivist thesis. Finally, it addresses arguments advanced by Ripstein, Duff, and Horder for eliminating the requirement of a conscious choice to do that which amounts to a denial of rights.

Private Law and Kantian Right

In The Idea of Private Law, Ernest Weinrib sought to rescue private laws autonomy from functionalisms reduction of private law to an instrument of the public interest. The twin ideas he employed for this purpose were corrective justice and Kantian Right. According to Weinrib, corrective justice provides private laws unifying structure, while Kantian Right supplies its normative content. In this essay, I argue that Kantian Right cannot be the normative complement to the correctivejustice form of private law because, with the exception of trespass to the person, private law vanishes in Kantian Right. I argue that there is no possibility for an autonomous private law in Kantian Right and that there is, indeed, a logical progression from Kantian Right to the very functionalism that Weinrib opposes.

The Unity of Property Law

This essay defends the thesis that the common law of property exhibits an internal unity worthy of moral respect. There are three distinct elements to this claim, each of which may be elucidated through a contrast with the position it opposes. First, the unity we seek in the law of property is an internal one. This means that we unabashedly seek property law’s own unity, regarding artificial constructions as a defect of interpretation rather than its normal product. We do not set out in advance the underlying ground for the possibility of faithful interpretations of legal practice; for that ground will emerge as the unifying theme of property law and so must be methodically drawn from the object rather than baldly asserted beforehand. Nevertheless, it is possible to indicate at the outset how an internalist understanding of property law will differ from interpretations that are constructionist, or that impose on the object a unity alien to it.

Alan Brudner and the Contemporary Significance of Hegel's Philosophy of Law

Drawing on the philosophy of Hegel, Alan Brudner’s book is an attempt to develop a comprehensive, unified theory of penal law for ‘liberal’ societies. At first sight the legal systems of these societies appear to lack any coherence or underlying unity. However, a closer analysis, undertaken from the standpoint of Hegel’s philosophical system, indicates that this is not the case. Underneath this surface diversity there is an underlying unity. Nevertheless, the unity that underpins the systems of penal law in such societies is of a particular kind. It is not homogeneous, but differentiated; not monolithic, but pluralistic. It is a higher level ‘unity of unities’, or (2012) 3(1) Jurisprudence 211–218

CONSTITUTIONALIZING SELF-DEFENCE†

Taking its cue from the Supreme Court of Canadas constitutionalization of the criminal laws unwritten general part, this article illustrates the interaction between criminal law theory and constitutional law that process implies. It does so by applying a criminal law theory of why and when force in self-defence is justified in order to assess the constitutionality of the self-defence provisions of Canadas Criminal Code. The assessment concludes that, though frequently criticized for excessive complexity, the Codes provisions on self-defence accurately track the nuances demanded by the theory of self-defence best qualified to interpret the provisions. That theory, I argue, puts dignity rather than self-preservation at its centre.

A Reply to Critics of Constitutional Goods

In this article, the author replies to critiques of his book, Constitutional Goods (Oxford, 2004) by Professors Trevor Allan, Clare Chambers, John Charvet, Philip Cook, Thomas Poole, and Lorenzo Zucca. These critiques were originally presented at a symposium held in May, 2008 at the London School of Economics and Political Science and were later published together in Vol. XXII (January, 2009) Canadian Journal of Law and Jurisprudence.