Deterrence in Private Law

Abstract Non-consequentialist justifications of private law liability foreground the role of the law in setting out, part-constituting, and providing enforcement of interpersonal moral rights and duties at the suit of right-holders. The justificatory role of deterrence is either explicitly rejected or not given much attention. The impression given is that deterrence is somehow necessarily inconsistent with the justificatory role of interpersonal moral rights and duties. Chapter 8 shows that this is not the case. The chapter outlines a general account of the normative role of deterrence in the justification of private law norms and enforcement. In making this argument, the chapter affirms Gardner’s view that deterrence matters, non-trivially, to private law, while not being the whole story, or even the most important story. In a nutshell, the thesis is that deterrence is neither necessary nor sufficient for a private law norm to be justified, but can play an important, difference-making, justificatory role when individuals do not have a reasonable individual objection to the deterrence-justified norm.