Private Law: Theoretical Perspectives

This subject is not offered in 2016.

144 hours.

Students who have completed LAWS50039 Legal Research 'Private Law: Theory and Practice' may not be allowed to take this subject or may be allowed to take the subject only under certain conditions. Any student who has completed Legal Research 'Private Law: Theory and Practice' and wishes to enrol in this subject should talk to the subject coordinator.

The Melbourne Law School welcomes applications from students with disabilities. It is University and Law School policy to take all reasonable steps to enable the participation of students with disabilities, and reasonable adjustments will be made to enhance a student's participation in the School's programs.

The inherent academic requirements for the study in the Melbourne Law School are:

1. The ability to attend classes and actively engage in the analysis of complex materials and debate;
2. The ability to read, analyse and comprehend complex written legal materials and complex interdisciplinary materials;
3. The ability to clearly and independently communicate in writing a knowledge and application of legal principles and interdisciplinary materials and critically evaluate these;
4. The ability to clearly and independently communicate orally a knowledge and application of legal principles and interdisciplinary materials and critically evaluate these;
5. The ability to work independently and as a part of a group;
6. The ability to present orally and in writing legal analysis to a professional standard.

Students must possess behavioural and social attributes that enable them to participate in a complex learning environment. Students are required to take responsibility for their own participation and learning. They also contribute to the learning of other students in collaborative learning environments, demonstrating interpersonal skills and an understanding of the needs of other students. Assessment may include the outcomes of tasks completed in collaboration with other students.

Students who feel their disability will prevent them from participating in tasks involving these inherent academic requirements are encouraged to contact the Disability Liaison Unit: www.services.unimelb.edu.au/disability/.

The subject will introduce and engage critically with a number of theoretical perspectives on private law, ie, the law that governs interactions between citizens of the state. With reference to different rules, principles, doctrines and remedies in the law of torts, contract law, the law of unjust enrichment, property law, and the law of equity and trusts, the subject will consider some key theoretical writings on private law and reflect on some debates of contemporary interest in private law theory.

In any given year, topics will vary, but may include some or all of the following:

• Law and economics insights into private law;
• Corrective justice theory and private law;
• Civil recourse theory and private law;
• Perfectionism, value pluralism and private law;
• Liberal, libertarian and communitarian perspectives on private law;
• Is it possible to draw a boundary between public and private law?;
• The place of equity in contemporary private law;
• How, if at all, should private law be classified?;
• Theoretical perspectives on the practices of promising and contracting;
• Private law and interpersonal trust.

A student who has successfully completed this subject will:

• Have an advanced and critical understanding of some key theoretical perspectives on private law, and an integrated understanding of the similarities and distinctions in those various perspectives;
• Have an advanced knowledge of some classical and contemporary debates and issues in private law theory;
• Be able to deploy analytical and evaluative skills in thinking independently about problems relating to private law rules, principles, doctrines and remedies from a theoretical perspective;
• Be able in a self-directed way to research, develop, and express in written form, theoretical arguments about questions relating to private law doctrine and practice.

• A 750 word abstract and annotated bibliography (15%), due in accordance with the assessment schedule;
• A 6,000 word research essay (85%), due in accordance with the assessment schedule.

• Cases, books, journal articles and other materials, which will be available via the resources (including the online resources) of the Law Library;
• Specialist printed materials may be made available by Melbourne Law School.

This subject is not available as a breadth subject.

A student who has successfully completed the subject will demonstrate a high-level ability to:

• Identify, locate, reflect critically on and evaluate relevant research materials, including cases, other legal materials, and philosophical writings;
• Formulate, develop, manage and realise, from inception to completion, a sustained research essay engaging with theoretical literature as well as legal rules, principles, doctrines and/or remedies;
• Express, in written form, reflections and arguments of a philosophical character touching on topics relating to private law, with both legal and philosophical audiences in mind;
• Understand the significance of method to research in legal theory, and formulate and evaluate methodological approaches to the study of private law theory.