Allan Beever

ARISTOTLE ON EQUITY, LAW, AND JUSTICE

In a famous passage in his Ethics, Aristotle considers the nature of equity and its relation to justice.1 His conclusion seems to be that equitys role is to prevent the law from adhering too rigidly to its own rules and principles when those rules and principles produce injustice. Hence equity permits judges to depart from legal principle in order to promote justice. In this article, however, I argue that this conclusion is problematic as it is inconsistent with other claims Aristotle makes, both in his short discussion of equity in the Ethics and elsewhere. Accordingly, I suggest a reinterpretation of Aristotles view that explains more satisfactorily the connection between law, in its various senses, and justice.

Kant on the Law of Marriage

The account of marriage Kant presents in the Rechtslehre strikes most readers as cold, legalistic and obsessed with sex. It seems to ignore at least nearly all of the morally valuable aspects of marriage. Consequently, most have felt that this is a feature of Kant’s theory best ignored. Against this view, this article argues that Kant’s focus is appropriate, that his understanding of marriage is much more romantic than is commonly thought and that it presents a thought-provoking alternative to the picture of marriage found in the modern law.

A Rights-Based Approach to the Recovery of Economic Loss in Negligence

The following two claims are widely accepted: first, the ordinary principles of the law of negligence imply recovery for economic loss limited only by foreseeability and, second, such recovery is unacceptable. Hence, the task of legal scholarship has been to discover appropriate policy justifications for restricting the ordinary principles of the law. This, perhaps, has been the most pressing problem facing analysis of the law of negligence in recent times. This article accepts the second claim but rejects the first. That is, it argues that recovery for many kinds of economic loss is inconsistent with the ordinary principles of the law of negligence. This has been obscured, because it has largely been forgotten that the law of negligence is not an area of the law sui generis. Negligence is part of tort which is in turn part of the private law. The principles of negligence, then, are meant to operate in conjunction with principles from other areas of law. When the place of tort law within the private law as a whole is remembered, the problem of economic loss evaporates.

Cause-in-Fact: Two Steps Out of the Mire

Perhaps the most problematic area of tort law concerns the cause-in-fact enquiry. In a way, this is not surprising. Demonstrating that one event caused another can be extremely difficult. Hence, it is not remarkable that the courts struggle with this issue. What is surprising is the track taken by academic debate. The controversy in the law journals centres on the correct understanding of the concept of causation. Some argue that they have the right theory, some that there is no theory. Whomever one reads, the conclusion seems inescapable: cause-in-fact is terribly complex. I aim to buck this trend. My view is that, though cause-in-fact is not uncomplicated, it is far less convoluted than one would imagine from reading much of the literature.

Formalism in Music and Law

Though apparently dead and buried for decades, formalist approaches to law appear to be gaining ground within the academy. This advance, however, has been strongly resisted by proponents of the alternative, functionalist, view. To many of them, formalism seems open to devastating, and indeed obvious, criticisms. In this article, I argue that these criticisms are without force, as they are based on misunderstandings concerning the formalist project. I demonstrate this by comparison with formalist approaches to another subject matter: music. In that area, too, formalism initially faced considerable challenge, but it survived to become the dominant view. It is submitted that the popular criticisms of formalism examined herein are no barrier to a similar outcome for formalism with respect to law. In that way, this article is intended as a defence and celebration of the path-breaking work of Ernest Weinrib.

Negligence and utility

ABSTRACT This article examines the claim that assessment of the standard of care in the law of negligence utilises and must utilise considerations of utility. It argues that this position is mistaken. It also maintains that cases frequently thought to support this view do not do so. The article also examines the justice of appeals to utility in the relevant cases and examines the appropriate way to deal with emergency situations.

The Form of Liability in the Torts of Trespass

This paper examines the form of liability found in the law of trespass. Though it is frequently held that liability in these torts is based on the intentional fault of the defendant, it is argued that the torts are in fact strict. The paper approaches this issue by examining the nature of intention in the law of trespass and the judgments in Letang v Cooper and Re F. The paper also explores the nature of the negligent trespass actions available in Australia.

Agreements, Mistakes, and Contract Formation

This article explores the nature of contract formation. It does so by examining the will theory and the declaration theory as accounts of agreement. The article concludes that neither theory is adequate either as a description of the operation of the law in practice or, more fundamentally, as an explanation of agreement. Instead, the article recommends an alternative account – ‘the objective will theory’ – that both adequately explains agreement and captures the operation of the law.