Justifying Private Rights

For instance, Catholicism, the legal system, and space rockets are all products of an evolutionary process, and possess an evolutionary history that encompasses the repeated, typically gradual refinement and recombination of earlier variants. [1] KN Laland and GR Brown, ‘The Social Construction of Human Nature’ in E Hannon and T Lewens (eds), Why We Disagree About Human Nature (Oxford, Oxford University Press, 2018) 137. In the call for papers for the workshop from which this volume arose, the organisers suggested the following question for discussion: what are the means and methodologies by which private rights are justified? Amongst modern private law theorists, one (quite common) methodology is what we might call ‘moral intuitionism’. This approach is ‘external’ to private law in the sense that it is not used to provide an ‘interpretive’ account of the rights that private law actually recognises (or fails to recognise), but to assess or justify the law’s recognition of (or failure to recognise) those rights against some ‘objective’ benchmark, often loosely referred to as ‘morality’. Under the name of ‘Natural Law’, John Bowker describes moral intuitionism in the following way:...