Academic

Dagan on Just & Unjust Enrichment

By Lawrence Solum

Hanoch Dagan (Tel Aviv University - Buchmann Faculty of Law) has posted Just and Unjust Enrichments on SSRN. Here is the abstract:

In exploring the most fundamental question in restitution theory of what separates just from unjust enrichments, this essay undertakes three interconnected missions. The first is to situate the types of cases that prompt liability in restitution within a wider universe of enrichments, including those that trigger taxation as well as those deemed benevolent. My second mission is to defend the view that the concept of property cannot serve as the baseline for distinguishing just from unjust enrichments, and we should instead resort to the normative guidance of the foundational liberal values of autonomy, utility, and community. My third task is to show that this orientation need not generate legal indeterminacy or strip the law of restitution from its constitutive characteristics as one part of our private law. Rather, I argue that my approach to restitution theory can yield a happy doctrine, composed of sharp rules and not vague standards, and responsive to the properly interpreted injunction of correlativity that underlies the legitimacy of private law.

And from the text:

even if we limit the role of autonomy, utility, and community to a circumscribed number of cases, the worry about unacceptable legal indeterminacy ? the second version of the predictability concern ? may still linger. Would not allowing restitutionary doctrines to rest on these three values without a predetermined formula for measuring and balancing them entail unbridled judicial discretion?

I do not think so, even when disregarding that classical legal formalism, the main alternative to legal reasoning, is hopelessly manipulable and thus indeterminate.35 To see why, we must first realize that a jurisprudence based on value pluralism such as the one I propose here for the law of restitution is very different from one that endorses the (philosophically suspect) positions of relativism, skepticism, or nihilism. These positions undermine any possibility of moral justification, evaluation, or for that matter criticism, and thus the idea of law itself.36 By contrast, value-pluralist jurisprudence recognizes a broad menu of incommensurable human alternatives, but acknowledges a minimal core of moral truths.37 In our case, the moral significance of autonomy, utility, and community.

Very interesting!

Full post as published by Legal Theory Blog on June 18, 2008 (boomark / email).