THE HUMANITY OF PRIVATE LAW PART I: EXPLANATION The Humanity of Private Law presents a new way of thinking about English private law. Making a decisive break from earlier views of private law, which saw private law as concerned with wealth-maximisation or preserving relationships of mutual independ- ence between its subjects, the author argues that English private law’s core concern is the flourishing of its subjects. THIS VOLUME • presents a critique of alternative explanations of private law; • defines and sets out the key building blocks of private law; • sets out the vision of human flourishing (the RP) that English private law has in mind in seeking to promote its subjects’ flourishing; • shows how various features of English private law are fine-tuned to ensure that its subjects enjoy a flourishing existence, according to the vision of human flourishing provided by the RP; • explains how other features of English private law are designed to preserve private law’s legitimacy while it pursues its core concern of promoting human flourishing; • defends the view of English private law presented here against arguments that it does not adequately fit the rules and doctrines of private law, or that it is implausible to think that English private law is concerned with promoting human flourishing. A follow-up volume will question whether the RP is correct as an account of what human flourishing involves, and consider what private law would look like if it sought to give effect to a more authentic vision of human flourishing. The Humanity of Private Law is essential reading for students, academics and judges who are interested in understanding private law in common law jurisdictions, and for anyone interested in the nature and significance of human flourishing. ii The Humanity of Private Law Part I: Explanation Nicholas J McBride HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2019 Copyright © Nicholas J McBride, 2019 Nicholas J McBride has asserted his right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. 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A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: McBride, Nicholas J., author. Title: The humanity of private law / Nicholas J McBride. Description: Oxford, UK ; Portland, Oregon : Hart Publishing, 2019. | “Part I: Explanation.” | Includes index. Identifiers: LCCN 2018039833 (print) | LCCN 2018040282 (ebook) | ISBN 9781509911967 (Epub) | ISBN 9781509911950 (hardback : alk. paper) Subjects: LCSH: Civil law—Social aspects—England. Classification: LCC KD721 (ebook) | LCC KD721 .M37 2019 (print) | DDC 346.42—dc23 LC record available at https://lccn.loc.gov/2018039833 ISBN: HB: 978-1-50991-195-0 ePDF: 978-1-50991-197-4 ePub: 978-1-50991-196-7 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters. To Isabel Nel mezzo del cammin di nostra vita mi ritrova per una selva oscura ché la diratta via era smarrita. vi PREFACE AND ACKNOWLEDGEMENTS This book sets out a way of thinking about private law that I have been developing over the last 15 years or so. A follow-up volume will ask ‘If we see the private law in this way (as I think we should, as doing so gives us more understanding of, and insight into, private law than any other view of private law), what should we make of it? Is it need of reform, or – indeed – a reformation? Is it worth all the trouble involved in giving effect to it? Is it in fact worth taking more trouble to give effect to it than we do at the moment?’ The focus throughout this book will be on English private law, but the way of thinking about private law developed in this book is easily capable of being adapted to the private law of other common law jurisdictions, and perhaps even beyond that. No way of thinking about private law can be developed in isolation. (Or, if it has, it is unlikely to be of any value.) The view of private law set out in this book has been devel- oped in conversation with a large number of fellow private law academics, for whose time, companionship, and patience I am extremely grateful: Roderick Bagshaw, John Bell, Alan Bogg, Peter Cane, Niamh Connolly, Tatiana Cutts, Paul Davies, John Goldberg, James Goudkamp, Sarah Green, Julius Grower, Lusina Ho, John Murphy, Jason Neyers, James Penner, Irit Samet, Rajiv Shah, Brian Sloan, Steve Smith, Jane Stapleton, Sandy Steel, Rob Stevens, Andy Summers, Bill Swadling, Jason Varuhas, Charlie Webb, Fred Wilmot-Smith, Sarah Worthington and Ben Zipursky. Alan, Tatiana, Paul, Julius, John, Rajiv, Brian, Steve, Sandy, Andy and Fred kindly read various chapters from the book in draft form and made numerous helpful suggestions for their improvement, as well as providing a huge amount of encouragement. Three of the greatest intellects I have had the pleasure of personally coming into contact with have had a huge and obvious influence on this book. The three intellects belonged to Peter Birks, Derek Parfit and Tony Weir. All are now sadly lost to us, though their books live on, one hopes forever. This book could not have been written without the benefit of various intellectual breakthroughs made in thinking about private law, which I have liberally taken advantage of (though I hope always with proper acknowledgment). Those breakthroughs were made by Steve Smith (on the relationship between duties and liabilities), Rob Stevens (on the necessary implications of a transaction being invalid), Bill Swadling (on the nature of a trust, and the effect of the various formality requirements in English law), and Ben McFarlane (on how various rules and doctrines in private law play a legitimacy-preserving role). As always, I am very grateful to my original teachers in Oxford, John Davies and Hugh Collins, both of whom played a crucial role in stimulating my interest in private law. Without their example and inspiration, it is doubtful whether this book would exist. The same can be said of the dedicatee of this book, Isabel Haskey. Almost nothing could be said to be closer to my heart than the desire to see this book (and its sequel) written and read, but she certainly is. The same is true of her children, Ines and Luca, the dedica- tees of the next volume. If this book were not dedicated to Isabel, it would be dedicated to Pembroke College and my colleague, Trevor Allan, for their steadfast loyalty, support and viii Preface and Acknowledgements encouragement in the 20 odd years that it has been my privilege to teach at Pembroke. I am also very grateful to Pembroke for allowing me the year’s leave in 2015–16 that allowed to me to get going on this project. I also owe a special debt of gratitude to Hong Kong Univer- sity, which has employed me to teach there in August and September each year for the past few years. Large portions of this book were written while I was staying out in Hong Kong. Hart Publishing should be especially acknowledged, not just for their help in produc- ing this book (in particular, the help provided by Sinead Moloney, Kate Whetter, Savannah Rado, Tom Adams and Helen Kitto) but also for the huge role it has played for slightly longer than I have been teaching at Pembroke in promoting the study and understanding of private law. I wish I could say how many Hart publications are cited in the following pages, but there are so many it would be hopeless to attempt to count them. My final acknowledg- ment is for Bill Asquith, who originally commissioned this book and was a huge support throughout the writing of the book. Sadly, Bill left Hart to enter the civil service before he could see this book through to publication. His choice to join the civil service was utterly in line with his general dedication to promoting the public good. I hope this book makes the kind of contribution to that cause of which he can be proud. Those wondering about the cover should turn to page 30, n 136. Those wanting to understand more about private law should read on. Nick McBride June 2018 TABLE OF CONTENTS Preface and Acknowledgements .................................................................................................vii Table of Cases ..............................................................................................................................xi Abbreviations and Key Terms ...................................................................................................xix 1. Introduction ...............................................................................................................1 1. Five Tough Cases ..............................................................................................................2 2. Three Explanations of Private Law .................................................................................7 3. A Different Picture .........................................................................................................26 4. Evaluating Private Law ..................................................................................................32 2. An ABC of Private Law .............................................................................................35 1. Duty and Obligation ......................................................................................................35 2. Rights ...............................................................................................................................43 3. Liabilities .........................................................................................................................54 4. Powers and Disabilities ..................................................................................................63 5. Interests............................................................................................................................70 6. Functions .........................................................................................................................78 3. Human Flourishing I – The RP ................................................................................82 1. The Nature of Flourishing .............................................................................................82 2. Finnis’ Account ...............................................................................................................83 3. Four Modifications .........................................................................................................86 4. The RP ............................................................................................................................107 4. Our Basic Obligations ............................................................................................115 1. The Basic Model ...........................................................................................................115 2. Two Objections .............................................................................................................117 3. The Basic Obligations Claim .......................................................................................123 4. Protected Interests ........................................................................................................125 5. Balancing Interests .......................................................................................................127 6. Property Interests .........................................................................................................143 5. The Law of Transactions .........................................................................................154 1. Gifts and Wills ..............................................................................................................155 2. Contracts .......................................................................................................................162 3. Trusts ..............................................................................................................................173 4. Companies ....................................................................................................................177 5. Marriage ........................................................................................................................180