Review: The Humanity of Private Law Parts I & II by Nicholas J McBride

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Abstract

GK Chesterton famously invoked the metaphor of a fence to defend a cautious approach to law reform. He said:
In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, ‘I don't see the use of this; let us clear it away.’ To which the more intelligent type of reformer will do well to answer: ‘If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.’
If we are to continue with the fence metaphor, then the ‘stand in’ for Chesterton’s Fence in Nicholas J McBride’s ambitious two part work The Humanity of Private Law is the entire corpus of English private law. Part I of McBride’s work addresses the question of why English private law exists in the first place. The answer provided by McBride is that the English private law is, at least at present, concerned with ensuring that its subjects possess ‘14 or so’ goods which aim to help those subjects flourish. McBride calls this the ‘possessions model’ of human flourishing on the basis that this model depends on subjects possessing certain goods. Those goods are listed as ensuring that subjects have: (1) good health; (2) freedom from being muddled or confused; (3) a sufficient degree of practical reasonableness to make sense of the world and from which to make personal judgements; (4) a sufficient degree of self-awareness as to how one’s life is going; (5) friends and a life partner; (6) whom they care about; (7) a sufficient degree of concern for one’s future and wellbeing; (8) a desire to pursue at least one meaningful project or cause; (9) a sufficient degree of mastery in at least one trade or game that requires some degree of skill; (10) a sufficient degree of creativity and opportunities to be creative; (11) a requisite degree of stability in one’s personal, cultural, political and environmental affairs; (12) flourishing for those individuals whom subjects care about; (13) freedom from undue anxiety about future flourishing; and (14) membership in a society in which the basic flourishing of everyone is promoted.
Original languageEnglish
Pages (from-to)281-288
Number of pages8
JournalTorts Law Journal
Volume26
Issue number(1)
Publication statusPublished - 23 Mar 2021

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