Monologism and Dialogism in Private Law

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  2. Dr Patrick O'Callaghan
Author(s)O'Callaghan P
Publication type Article
JournalThe Journal Jurisprudence
Year2010
Volume7
Issue
Pages405-440
ISSN (print)1836-0955
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In this paper, which is part of a collection marking the 25th anniversary of the publication of Hutchinson and Morgan's paper 'The Canengusian Connecton' I examine what light that paper sheds on the question of the public-private relationship in tort law. I argue the Canengusian judges for the most part implicitly treat tort as being either purely private in orientation or purely public, and ignore the possibility that tort law intrinsically has both private and public features. In this they reflect much (but not all) of academic writing, but stand in fairly sharp contrast to real judicial discussions of tort law, which are much more nuanced in their approach to the public-private relationship. I discuss the nature and causes of this gap and suggest that there is something to be learned from Christian theology, in particular the way it approaches questions of the dual nature of Christ as both divine and human. I draw upon the Christological theories of Dietrich Bonhoeffer to discuss how we might seek to use similar ideas to model the public-private relationship in tort law.
PublisherElias Clark Group
URLhttp://www.jurisprudence.com.au/juris7/ocallaghan.pdf
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