1. Nicholas J McBride, The Humanity of Private Law Part I: The Explanation (Hart, 2018) at viii.

2. Ibid at 30-31.

3. See James Goudkamp & John Murphy, “Divergent Evolution in the Law of Torts: Jurisdictional Isolation, Jurisprudential Divergence and Explanatory Theories” in A Robertson & M Tilbury, eds, The Common Law of Obligations: Divergence and Unity (Hart, 2015) 281.

4. See James Goudkamp & John Murphy, “Tort Statutes and Tort Theories” (2015) 131 Law Q Rev 133.

5. See James Goudkamp & John Murphy, “The Failure of Universal Theories of Tort Law” (2015) 21:2 Leg Theory 47 (in particular, they argue that universal tort theories cannot account for: recovery of pure economic loss in negligence, breach of duty, the rule in Rylands v Fletcher, the defence of illegality and the availability of punitive damages); Peter Cane, “Corrective Justice and Correlativity in Private Law” (1996) 16:3 Oxford J Leg Stud 471 (corrective justice cannot explain much of private law, particularly strict liability); Christian Witting “The House That Dr. Beever Built: Corrective Justice, Principle and the Law of Negligence” (2008) 71:4 Mod L Rev 621 (corrective justice cannot explain the law of negligence); Dan Priel, “Land Use Priorities and the Law of Nuisance” (2015) 39:1 Melbourne UL Rev 346 (corrective justice cannot explain the law of private nuisance).

6. John Murphy, “Contemporary Tort Theory and Tort Law’s Evolution” (2019) 32:2 Can JL & Jur 413 at 415.

7. See John Murphy, “Hybrid Torts and Contemporary Tort Theory” (2018) 64:1 McGill LJ 1.

8. See Dan Priel, “Torts, Rights and Right-Wing Ideology” (2011) 19:1 Torts LJ 1.

9. See Tsachi Keren-Paz, Torts, Egalitarianism and Distributive Justice (Ashgate, 2007).

10. See Steve Hedley, “Is Private Law Meaningless?” (2011) 64:1 Current Leg Probs 89 at 90 and Steve Hedley, “The Rise and Fall of Private Law Theory” (2018) 134 Law Q Rev 214.

11. See Richard Posner, “A Theory of Negligence” (1972) 1:1 J Leg Stud 29.

12. See Ernest Weinrib, The Idea of Private Law (Oxford University Press, 2012); Allan Beever, Rediscovering the Law of Negligence (Hart, 2007); Allan Beever, A Theory of Tort Liability (Hart, 2016).

13. The latter includes John Goldberg and Benjamin Zipursky’s civil recourse theory (tort law is concerned with providing victims with an avenue of civil recourse against those who have wrongfully injured them) and John Gardner’s continuity thesis (if D breaches a moral duty to C to do X then they will owe C a new duty to undo the harmful consequences that result from the breach of that duty). See John Goldberg & Benjamin Zipursky, “Torts as Wrongs” (2010) 88:5 Tex L Rev 917 and John Gardner, “What is Tort Law For? Part 1: The Place of Corrective Justice” (2011) 30 Law & Phil 1.

14. McBride, supra note 1 at 28.

15. Ibid at 10-11 and 13-14. He also criticises legal moralist theories as they perpetuate the idea that morality is a code rather than a map. Although I need not engage with this debate for the purposes of this article, I found this argument unconvincing as I doubt that this critique is open to work based on the new natural law.

16. Ibid at 30.

17. Ibid at 70.

18. Ibid at 30-31.

19. Ibid at 82.

20. Ibid.

21. Ibid.

22. Ibid at 83.

23. 2nd ed (Oxford University Press, 2011).

24. Ibid at 420.

25. See John Finnis, “Law, Morality, and ‘Sexual Orientation’” (1994) 69:5 Notre Dame L Rev 1049 and John Finnis, Moral Absolutes: Tradition, Revision and Truth (Catholic University of America Press, 1991) at 84-106. Contra Finnis, see Nicholas Bamforth & David Richards, Patriarchal Religion, Sexuality, and Gender: A Critique of New Natural Law (Cambridge University Press, 2011) at 277.

26. McBride, supra note 1 at 107.

27. Ibid.

28. Ibid at 85.

29. Ibid.

30. Ibid at 86.

31. Ibid at 108. This is open to question. Similar claims could arguably be made by some of the rival theories that McBride is quick to dismiss, such as the capabilities approach developed by Sen and Nussbaum. See Amartya Sen, The Idea of Justice (Penguin, 2010) at Part III and Martha Nussbaum, Creating Capabilities: The Human Development Approach (Harvard University Press, 2011).

32. McBride, supra note 1 at 114.

33. Ibid at 124.

34. Ibid. McBride includes a table at 107 where the secondary goods are referred to as “external goods” and included with the catalogue basic goods. The tertiary goods are not included in this table.

35. Ibid at 124.

36. Ibid.

37. Ibid at 115.

38. Ibid at 123.

39. Ibid at 127.

40. Ibid at 154.

41. Ibid.

42. Ibid at 199.

43. Ibid at 203.

44. Ibid.

45. Ibid.

46. Ibid at 241.

47. Being the subject of Lord Sumption’s recent Reith Lectures, it is also very timely. See Jonathan Sumption, Trials of the State: Law and the Decline of Politics (Profile Books, 2019) at 24.

48. [1977] QB 966.

49. McBride, supra note 1 at 116.

50. Ibid at 129.

51. Ibid at 115-116.

52. Ibid at 125.

53. Ibid at 127.

54. Ruth Chang, in contrast to McBride’s scheme, would dispute the idea that goods are incomparable because they belong to a certain type. She gives the example that a superficial and banal friendship—albeit, still a friendship—would not necessarily be preferable to a million dollars’ worth of mere market goods (see Ruth Chang, “Against Constitutive Incommensurability or Buying and Selling Friends” (2001) 11 Philosophical Issues 33 at 56). According to McBride’s scheme, the friendship would be of more value.

55. McBride, supra note 1 at 129.

56. For criticisms of the idea that the law of nuisance is concerned with land use priorities, see Dan Priel, “Land Use Priorities and the Law of Nuisance” (2015) 39:1 Melbourne UL Rev 346 at 365. Priel criticises the theory of nuisance developed by Allan Beever in The Law of Private Nuisance (Hart, 2013).

57. One might even argue that “money” should be a secondary good and a “reasonable level of income” the tertiary good as the latter allows one to obtain the former. It is undeniable that if I earn enough income, I can save up part of my salary to obtain a store of money. However, the better view is that these goods are indistinguishable as if I have a large store of money it can also lead to me having a reasonable level of income (e.g. compensatory damages awarded as a lump sum or savings in a pension). Ignoring interest and living costs, £100,000 per year for ten years could allow me to save £1,000,000 (i.e. an income can lead to a store of money) and £1,000,000 as a lump sum could allow me to have £100,000 per year for ten years (money can lead to income).

58. [1989] AC 177.

59. McBride, supra note 1 at 6.

60. Ibid at 242.

61. [1990] 1 AC 831.

62. For a critique, see Jane Stapleton, “Duty of Care and Economic Loss: A Wider Agenda” (1991) 107 Law Q Rev 249 at 277-83.

63. McBride, supra note 1 at 134.

64. Ibid at 28.

65. Ibid at 242.

66. See Bryan v Maloney, [1995] HCA 17 (Australia); Winnipeg Condominium Corporation No 36 v Bird Construction Co, [1995] 1 SCR 85 (Canada); Invercargill City Council v Hamlin, [1996] AC 624 (New Zealand); RSP Architects v MCST Plan No 1075 (Eastern Lagoon), [1999] 2 SLR (R) 134 (Singapore).

67. Law Reform (Miscellaneous Provisions) Act (UK), 1970, ss 4-5. These torts are discussed by McBride, supra note 1 at 184.

68. McBride, supra note 1 at 184.

69. Ibid at 131.

70. Ibid.

71. See John Murphy, “Malice as an Ingredient of Tort Liability” (2019) 78:2 Cambridge LJ 355.

72. Lonrho Plc v Fayed, [1992] 1 AC 448 at 465, Lord Bridge. See also Quinn v Leathem, [1901] AC 495 and JSC BTA Bank v Khrapunov, [2018] UKSC 19 at para 9, Lord Sumption and Lord Lloyd-Jones.

73. [1892] AC 25.

74. See Crofter Hand Woven Harris Tweed Co v Veitch, [1942] AC 435; Lonrho Ltd v Shell Petroleum Co, [1982] AC 173; Total Network SL v HMRC [2008] 1 AC 1174 at para 38, Lord Hope.

75. Hazel Carty, An Analysis of the Economic Torts, 2nd ed (Oxford University Press, 2010) at 180.

76. McBride, supra note 1 at 28.

77. Jane Stapleton, “Taking the Judges Seriously” (2018), online at Clarendon Law Lectures www.law.ox.ac.uk/clarendon-law-lecture-series [perma.cc/44X7-LGJN].

78. See, for example, Beever, supra note 12 at 268 (criticising White v Jones, [1995] 2 AC 207) and Robert Stevens, “The Unjust Enrichment Disaster” (2018) 134 Law Q Rev 574 (arguing that several restitution cases were incorrectly decided).

79. See the examples given in Murphy, supra note 71 at 356.

80. See, e. g., Weinrib’s argument in Ernest Weinrib, The Idea of Private Law (Oxford University Press, 2012) at 151 that public authority liability in negligence is “closer to the judicial review of administrative actions.”

81. McBride, supra note 1 at 242.

82. Ibid.

83. Ibid at 245.

84. Ibid at 243.

85. Ibid at 248.

86. Ibid at 249

87. Ibid at 235.

88. Ibid at 33.

89. Ibid.

90. Ibid at 34.

91. Ibid. One might doubt whether the Journey Model complies with McBride’s own requirements for human flourishing listed at 33 but will await volume 2 to see whether these are resolved.

92. See Murphy, supra note 7 and Peter Cane, “Anatomy of Private Law Theory: A 25th Anniversary Essay” (2005) 25:2 Oxford J Leg Stud 203 at 207.

93. McBride, supra note 1 at 39.

94. Ibid.

95. Ibid.

96. John Murphy, “Rights, Reductionism and Tort Law” (2008) 28:2 Oxford J Leg Stud 393 at 407.

97. McBride, supra note 1 at 119.

98. Ibid.

99. See White v Chief Constable of South Yorkshire Police,[1999] 2 AC 455 at 492-93, Lord Steyn, and at 501, Lord Hoffmann.

100. McLoughlin v O’Brian, [1983] 1 AC 410 at 431, Lord Bridge.

101. Indeed, it is easier to claim for psychiatric injury as a result of damage to property than it is to claim for psychiatric injury caused by the death of a close friend, despite the latter being a basic good and property being a secondary good. Compare Attia v British Gas, [1988] QB 304 with Alcock v Chief Constable of South Yorkshire Police, [1992] 1 AC 310.

102. McBride, supra note 1 at 145.

103. Ibid at 144-45.

104. Alex Therrien, “Could psychedelics transform mental health?” (1 July 2018), online at BBC News www.bbc.co.uk/news/health-44575139 [perma.cc/CY28-CPE3].

105. See David Nutt et al, “Development of a Rational Scale to Assess the Harm of Drugs of Potential Misuse” (2007) 369:9566 The Lancet 1047.

106. McBride, supra note 1 at 30.

107. Ibid at 169.

108. Ibid at 167.

109. Ibid at 169.

110. Ibid.

111. Ibid.

112. Ibid at 170.

113. See Craig Purshouse & Kate Bracegirdle, “The Problem of Unenforceable Surrogacy Contracts: Can Unjust Enrichment Provide a Solution?” (2018) 26:4 Med L Rev 557 at 575-78.

114. There is greater inequality in the USA than the UK, but it is highly doubtful that the reason for such disparities is the enforceability of surrogacy contracts.

115. See Prostitution Reform Act 2003 (NZ), s 7, which states that such contracts are not void or illegal. An argument could also be advanced that, in a capitalist society, permitting kidney sales could promote flourishing. See also Janet Radcliffe Richards, Careless Thought Costs Lives: The Ethics of Transplants (Oxford University Press, 2012) at 42-101.

116. See Michael Freeman, “Does Surrogacy Have a Future After Brazier?” (1999) 7:1 Med L Rev 1 at 2-6.

117. McBride, supra note 1 at 178.

118. Ibid.

119. Ibid.

120. Ibid at 107 [my emphasis].

121. See RH Coase, “The Problem of Social Cost” (1960) 3 JL & Econ 1.

122. See Kim Cotton, “The UK’s Antiquated Laws on Surrogacy: A Personal and Professional Perspective” (2016) 4:3 J of Medical L & Ethics 229.

123. England and Wales Law Commission and Scottish Law Commission, Building Families through Surrogacy: A New Law – A Joint Consultation Paper (Consultation Paper 244, 2019) 28-31.

124. See supra note 12 for accounts of corrective justice. For accounts of distributive justice see Keren-Paz, supra note 9; Peter Cane, “Distributive Justice and Tort Law” (2001) NZLR 401 at 413; Dan Priel, “Private Law: Commutative or Distributive?” (2014) 77:2 Mod L Rev 308.

125. For a useful discussion of incommensurability see Ruth Chang, “Introduction” in Ruth Chang, ed, Incommensurability, Incomparability, and Practical Reason (Harvard University Press, 1998). Chang reserves the term “incommensurable” for items that cannot be precisely “measured by some common scale of units of value” and distinguishes this from “incomparable,” which refers to items that cannot be compared. Goods being incommensurable is not fatal to utilitarianism (it does not require a precise valuation of different options).

126. Ruth Chang, “Value Incomparability and Incommensurability” in I Hirose & J Olson, eds, The Oxford Handbook of Value Theory (Oxford University Press, 2015) at 208.

127. Murphy, supra note 6.

128. See Craig Purshouse, “Utilitarianism as Tort Theory: Countering the Caricature” (2018) 38:1 LS 24.

129. [2002] 1 AC 215.

130. See JAG Griffith, The Politics of the Judiciary, 5th ed (Fontana Press, 1997) 293 and Lord Devlin, “Judges and Lawmakers” (1976) 39:1 Mod L Rev 1 at 8.

131. [1868] UKHL 1.