,
,Lecture 1 – What is private law?
, 1.2 LEGAL PERSONS ARE SUBJECT TO PRIVATE LAW
Individuals Private Institutions Government bodies
Escape from Private Law ▪ Federals, states, government
▪ Allowance made for children Corporate agencies, government business
o They cannot enter ▪ Subject to private law but not enterprises similar organisations
into contracts unless as individuals ▪ Subject to private law:
over necessity but ▪ Limited liability (affects how people didn’t like them
they are subject to much money we can get from hiding behind separation of
tort them) powers
o They have no money ▪ Artificial constructs – they ▪ State vs. Territories: states
and are not worth suing don’t exist are there since the
▪ Mental disabilities allow ▪ How do we know when they act constitution, federal
them to not enter contracts – to attract the consequences of governments cannot touch
still subject to torts private law? what state government do
▪ Company’s constitution –rules of ▪ By and against Crown
operation – see them as a Proceedings Act 1993 (Tas) s
person 5:
▪ Section 1: “subject to this act”
– can pass other legislation to
override this
▪ Section 6: “no act shall be
binding on Crown/derogate
from any prerogative right of
the Crown unless express
words are included therein for
that purpose”
1.3 ROLE OF PRIVATE LAW
*Steve Hedley, ‘Is private law meaningless?’
Embedded values
▪ Corrective justice – justice between 2 individuals
o Natural law, basis of civil law tradition
o Should private law reflect morals?
o Rights theory: protection of personal basic rights – But conflict of rights? Philosophical
in approach. What are rights?
o Interpretive theory: descriptive, fitting theory to cases, tells us what law is, not what it
should be, to encourage standards and consistency. Helps know what the law is, plan
our behaviour around it, and check behaviour of judges. Fairness as we treat like cases
alike.
▪ Distributive justice – look at broader community (see everyone is happy)
o Tool of economic efficiency, to allocate resources
o Breach is determined by courts in terms of cost benefit analysis
o Positivist law
o Provide civil recourse
▪ Tension between 2 (Andrew Robertson)
o Start with corrective justice (remedy of private)
o Public policy concerns/distributive (no remedy, interest of state)
,Lecture 1 – What is private law?
, 1.2 LEGAL PERSONS ARE SUBJECT TO PRIVATE LAW
Individuals Private Institutions Government bodies
Escape from Private Law ▪ Federals, states, government
▪ Allowance made for children Corporate agencies, government business
o They cannot enter ▪ Subject to private law but not enterprises similar organisations
into contracts unless as individuals ▪ Subject to private law:
over necessity but ▪ Limited liability (affects how people didn’t like them
they are subject to much money we can get from hiding behind separation of
tort them) powers
o They have no money ▪ Artificial constructs – they ▪ State vs. Territories: states
and are not worth suing don’t exist are there since the
▪ Mental disabilities allow ▪ How do we know when they act constitution, federal
them to not enter contracts – to attract the consequences of governments cannot touch
still subject to torts private law? what state government do
▪ Company’s constitution –rules of ▪ By and against Crown
operation – see them as a Proceedings Act 1993 (Tas) s
person 5:
▪ Section 1: “subject to this act”
– can pass other legislation to
override this
▪ Section 6: “no act shall be
binding on Crown/derogate
from any prerogative right of
the Crown unless express
words are included therein for
that purpose”
1.3 ROLE OF PRIVATE LAW
*Steve Hedley, ‘Is private law meaningless?’
Embedded values
▪ Corrective justice – justice between 2 individuals
o Natural law, basis of civil law tradition
o Should private law reflect morals?
o Rights theory: protection of personal basic rights – But conflict of rights? Philosophical
in approach. What are rights?
o Interpretive theory: descriptive, fitting theory to cases, tells us what law is, not what it
should be, to encourage standards and consistency. Helps know what the law is, plan
our behaviour around it, and check behaviour of judges. Fairness as we treat like cases
alike.
▪ Distributive justice – look at broader community (see everyone is happy)
o Tool of economic efficiency, to allocate resources
o Breach is determined by courts in terms of cost benefit analysis
o Positivist law
o Provide civil recourse
▪ Tension between 2 (Andrew Robertson)
o Start with corrective justice (remedy of private)
o Public policy concerns/distributive (no remedy, interest of state)
