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Beyond 'right' and 'duty': Lundstedt's theory of obligations

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Title of host publicationRights and Private Law
DatePublished - Dec 2011
PublisherHart Publishing
Place of PublicationOxford
Original languageEnglish
ISBN (Print)9781849461429

Abstract

Although Vilhelm Lundstedt is principally known in the English-speaking world for his jurisprudential writings from the point of view of Scandinavian realism, he also wrote extensively in Swedish on theoretical and practical issues within the law of obligations, most notably in his "Föreläsningar över valda delar av obligationsrätten" (Lectures on selected parts of the law of obligations), which appeared in eight volumes over a thirty-three year period between 1920 and 1953. In this paper, I present an account of Lundstedt's theory of obligations drawn from his Swedish writings, and explore the relevance of his views for current debates on obligations in common law. I focus in particular on two key strands within Lundsted's thought, which were fundamental to his views on the law of obligations, and his theory of law more generally. The first is his well-known critique of rights, which in his writings on obligations takes the form of an express rejection of the notion that obligations are, or can be, grounded in legal rights. The second, and less well-known, strand is his criticism of responsibility-based accounts of liability, and of concepts such as causation on which accounts of responsibility are based. These views collectively led him to question the value of traditional taxonomic divisions within the law of obligations, and to reconceptualise what constituted a legal obligation with reference to the notion of "samhällsnyttan", or the good of society. These theories, I argue, have an important contribution to make to current debates on the present and future shape of the common law of obligations, even though they may on the face of it seem fundamentally different from conventional accounts of the common law of obligations.

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