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Civil Wrongs and Justice in Private Law$
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Paul B. Miller and John Oberdiek

Print publication date: 2020

Print ISBN-13: 9780190865269

Published to Oxford Scholarship Online: July 2020

DOI: 10.1093/oso/9780190865269.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 20 June 2021

Purely Formal Wrongs

Purely Formal Wrongs

(p.19) 2 Purely Formal Wrongs
Civil Wrongs and Justice in Private Law

Liam Murphy

Oxford University Press

This chapter cautions against the moral grounding of private rights and duties and, in turn, private law's response to wrongs. The argument is framed as a rebuke to those who suppose that private law must be interpreted from an internal, rather than instrumental, point of view. According to this chapter, interpretive theorists assume that the deontic structure of private law implies deontological moral grounding. But it argues that there is no good reason to think this, and, indeed, there are plenty of reasons to think otherwise. Private law may be formally deontic but nevertheless have instrumental moral justification. The interesting and difficult question is what to make, normatively, of the deontic structure of private law. Against the view that civil wrongs are moral wrongs, this chapter asserts that they are purely formal.

Keywords:   moral wrongs, private law, instrumental moral justification, formal wrongs, civil wrongs

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