Dennis Klimchuk

The Structure and Content of the Right for Restitution for Unjust Enrichment

John Austin held that the principal analytic distinction to be drawn in the law of obligations is that between primary and secondary rights and duties. Secondary rights and duties, on Austin’s account, are those that arise from violations of other rights and duties, or, as he variously puts it, from delicts or injuries. Primary rights and duties are those that do not arise from violations of other rights and duties. Conjoining this distinction with the principle that ‘every right of action arises from an injury,

Three Accounts of Respect for Persons in Kant's Ethics

The idea that respect for persons comprises the core of morality has long been associated with Kant and the ethics of the Groundwork of the Metaphysics of Morals . In particular, the second formulation of the categorical imperative (CI), the Formula of Humanity as an End-in-itself (FHE) – ‘So act that you use humanity, whether in your own person or in the person of any other, always at the same time as an end, never merely as a means’ (G, 429) – is often glossed as enjoining us to respect persons as such. On what I think may fairly be called the received view, the injunction to respect persons as such is thus, for Kant, co-extensive with morality itself.

Causation, Thin Skulls and Equality

On May 3rd 1974 Mr. Blaue entered Ms Woodhead’s house, demanding that she have sexual intercourse with him. She refused, and he attacked her with a knife and fled. Wounded seriously, she staggered out of her house and collapsed on a neighbour’s lawn. She was taken by ambulance to a hospital, where she learned that she would require surgery. Upon being informed that a blood transfusion would be required, she refused, because permitting the procedure would have been contrary to her beliefs as a Jehovah’s Witness. She was told that if she refused a blood transfusion she would surely die. She said she preferred death to undergoing the procedure, and died early the next day. As well as being an especially tragic case, R . v. Blaue raises several deep and important questions about the doctrine of causation in the criminal law. Did Blaue kill Woodhead? That is, was killing her among the things he did, an action of his rather than an event which followed his action, or an action of Woodhead’s? The general question underlying these more specific ones is: for which of the consequences of his action must a wrongdoer answer?

THE SCOPE AND STRUCTURE OF UNJUST ENRICHMENT

From the publication of his Introduction to the Law of Restitution in 19851 until his death in 2004, Peter Birks was the leading common law scholar of the law of restitution and unjust enrichment. He contributed more than anyone else to shaping the subject and setting the agenda for the ever-growing body of academic scholarship dedicated to it. Birks’s work established on several points the views against which others are articulated and defended. So it was dramatic when he announced in the preface to the first edition of Unjust Enrichment (published in 2003) that ‘[a]lmost everything of mine now needs calling back for burning.’2 Now, this overstates the breadth of the changes in Birks’s view that it prefaces. But the three principal recantations of Unjust Enrichment, as Birks calls them, are significant and deep. In answer to the commentary attracted by its publication and to developments in case law, Birks quickly set to preparing a second edition, which he left nearly complete at the time of his death in July 2004. The second edition of Unjust Enrichment represents Birks’s last words on the subject. Readers of the first edition will need to review the second. There are important developments of parts of the analysis, and one recantation is reconsidered (though not recanted). It is required reading for everyone else interested in this fascinating area of law. Birks’s exposition and analysis are, as always, unparalleled in clarity and rigour. The first part is an especially accessible introduction to the law of unjust enrichment and to what is at issue in the claim that there is such a domain of private law. As it travels through the details and into less settled areas of the law, the book asks more of the reader; but that work is amply repaid. Unjust Enrichment is a first-rate work. I

Restitution and Realism

While the roots of the common law of restitution reach back hundreds of years, the idea that it constitutes a domain of private law was first clearly articulated in the American Law Institute’s Restatement of Restitution in 1932. The U.S. was at the forefront of development in the law of restitution but interest has declined. Recently John Langbein offered an explanation, first in terms of law and economics and then through legal realism. Realism, by Langbein’s estimation, has exacted “a terrible toll” on doctrinal study in the postwar period. One of the principal aims of The Law and Ethics of Restitution , Hanoch Dagan writes, is to disprove this claim. Realism, properly understood, is supportive of doctrine and, he argues, in this context, provides a better account of the law than the prevailing view. This book is a challenging and important work not only in the law of restitution but also in legal theory. My main interest in this Critical Notice is to ask whether the kind of justification for liability in restitution Dagan offers is compelling. While part of what separates Dagan from Langbein is their understanding of legal realism, I take Dagan to be right on this point, and ask whether he’s made the case in favour of a realist account of restitution. I do that by considering two examples of the doctrinal analyses that form the bulk of the book: first by outlining a pair of issues on which Dagan takes a position by setting up the question he aims to ask, and then by considering his rejection of the view to which The Law and Ethics of Restitution offers an alternative.