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The Meaning and Significance of Conscience in Private Law

Agnew, SC; (2018) The Meaning and Significance of Conscience in Private Law. Cambridge Law Journal 10.1017/S0008197318000582. (In press). Green open access

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Abstract

This article argues that the idea of conscience can play a useful, albeit limited and highly general, explanatory role in private law, if we have regard to two distinctive contexts in which it is used. First, it tells us something about how equitable obligations arise and reminds us that they directly enforce moral duties. Second, it conveys the message that the courts are reluctant to impose primary liabilities which restrict the exercise of legal rights absent a past or prospective breach of moral duty by the defendant. Without further explanation, the indiscriminate invocation of conscience in both contexts can lead to confusion and uncertainty, but if the distinction between obligation and liability is observed, the explanatory force of conscience in relation to each becomes clearer, and it plays a valuable role in bolstering the authority of private law.

Type: Article
Title: The Meaning and Significance of Conscience in Private Law
Open access status: An open access version is available from UCL Discovery
DOI: 10.1017/S0008197318000582
Publisher version: https://doi.org/10.1017/S0008197318000582
Language: English
Additional information: This version is the author accepted manuscript. For information on re-use, please refer to the publisher’s terms and conditions.
URI: http://discovery.ucl.ac.uk/id/eprint/10050023
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