Intensive Course: Private Law before Liberalism

Note: The add/drop date for this course is Monday, January 5 at 10:00 PM.

Course Location: Please see the "Intensive Course Schedule" under Schedules and Timetables (http://www.law.utoronto.ca/academic-programs/schedules).

Note: Attendance at intensive courses is mandatory for the duration of the course.

For jurists in the nineteenth century, law was to be found in authoritative texts: in common law jurisdictions, the decisions of courts; in France, the provisions of the French Civil Code; in Germany, the Roman legal texts of the Corpus iuris civilis.  Different as these sources were, jurists interpreted them to mean that property is the right of the owner to do as he chooses with what he owns, contract is the will of the parties, and tort law redresses the violations of rights recognized by positive law.  Most jurists now recognize that these propositions did not even describe the law as it was in the nineteenth century, let alone today.  Yet many would admit we have not found an alternative to conceiving of private law in the same way as the nineteenth century jurists.  

This course contrasts the nineteenth century approach with an earlier one that prevailed from the sixteenth to the eighteenth centuries among continental jurists.  It was borne of an attempt to synthesize Roman private law with what some have called the “great tradition” in ethical and political thought which stretches back to Aristotle and was not confidently rejected until the nineteenth century.  Rights of property were limited by concerns of distributive justice.  Tort and contract law were forms of commutative justice.  Distributive and commutative justice served the common good.  The common good was not in tension with the protection of private rights but was promoted by protecting them.  These jurists gave private law a systematic doctrinal structure for the first time.  The nineteenth century kept much of that structure but purged it of concerns with justice, distributive or commutative.  The earlier approach is worth reconsidering for its own sake and because many of our present difficulties arose when it was rejected.