The humanity of private law: Part I Explanation (original) (raw)

Private Law Theory: The State of the Art

SSRN Electronic Journal, 2021

This essay reviews four recent English-language essay collections, each of which proposes a vision of private law theory – that is, of how private law appears in the light of a wider understanding of the world. It concentrates on how each collection gives some sort of shape to the emerging discipline. Discussion of the shape, meaning and significance of private law is of course nothing new; but the recent massive outpouring of theory, and the issues which have been treated as important, require some discussion of the intellectual climate which has led us to this place. For the most part, this essay argues, the discussion has been governed by the increasing obsolescence of classical private law concepts, which the more progressive writers have taken as a call to develop new concepts, and the more traditional writers have taken as a call to defend what is valuable about them; over time, this has increasingly pushed the traditionalists to a position where they can describe some (though hardly all) of what we all see, but which is largely impotent in justifying it – that is, in explaining why it is worth retaining. Meanwhile, the terms of debate have become increasingly narrow, as continuity is privileged over change, the lawyer’s point of view privileged over that of other community members, and national court-based law is emphasised over the many other forms of social ordering. Yet there are now also welcome signs of a broader approach, by which different perspectives are seen as complementing one another rather than as rivals, and there is (sometimes at least) genuine enquiry into what is really universal and what is merely a local present-day peculiarity. And we might be approaching – to put it no higher– the time when private law theory is a genuine conversation rather than as a mere cacophony of voices.

The Rise and Fall of Private Law Theory

Law Quarterly Review, 2018

Over the last four decades of common law thought, there have been increasingly sophisticated attempts to develop comprehensive theories of private law. Chief amongst these are (1) theories of corrective justice, (2) economic theories, and (3) formalist accounts. The common feature of these apparently diverse “grand theories” is a lack of trust in collective action: legislatures are not trusted to serve the public good, individuals are trusted only to pursue their private interests, and judges are trusted only when they focus on technical legal issues, not when they ask whether their decisions may have a broader significance. These accounts implicitly contrast the rights of individuals with the good of the community. Yet the opposition is false: safeguarding the rights of individuals is safeguarding the good of the community, and vice-versa. Their approach makes large areas of private law either invisible or incomprehensible, and leave them with little to say on how the law can be re...

PRIVATE LAW AND KANTIAN RIGHT†

University of Toronto Law Journal, 2011

In The Idea of Private Law, Ernest Weinrib sought to rescue private law's autonomy from functionalism's reduction of private law to an instrument of the public interest. The twin ideas he employed for this purpose were corrective justice and Kantian Right. According to Weinrib, corrective justice provides private law's unifying structure, while Kantian Right supplies its normative content. In this essay, I argue that Kantian Right cannot be the normative complement to the correctivejustice form of private law because, with the exception of trespass to the person, private law vanishes in Kantian Right. I argue that there is no possibility for an autonomous private law in Kantian Right and that there is, indeed, a logical progression from Kantian Right to the very functionalism that Weinrib opposes.

The Utopian Promise of Private Law

SSRN Electronic Journal, 2014

This article uses Robert Nozick's account of utopia as a framework for utopias to examine the normative underpinnings of private law. Nozick's insight, I argue, points to private law's irreducible role in upholding individual self-determination and reveals its function in vindicating a robust conception of relational justice. These underpinnings are far removed from the libertarian foundations ascribed to private law not only by Nozick and other libertarians but also by Kantians and many division-of-labour liberal egalitarians. They require us to discard the conventional conceptions of property (as sole and despotic dominion) and of contract (as a means for delineating the boundaries of protected domains), which Nozick espouses. Private law's underlying normative commitments to both individual self-determination and relational justice also have important distributive implications. These implications, however, are distinct from the considerations of justice in holdings that concern the institutions responsible for distributive justice.

Private law theory and the past

Private law theory plays a role (for better or worse) in the practice of law, whether that be in education or providing criticism, or contextualizing within a broader frame what private law does and why it does what it does. Yet some say that private law theory neglects history while others say that it does not fully capture history’s possibilities. In this paper, I explore what it means to use history in theorising by exploring how analytical philosophy has engaged with history since the 1960s, suggesting three possible historical avenues of private law theory.

Introduction: Beyond the State? Rethinking Private Law

2008

ference and the closed workshop showed how varied the approaches and focuses, even the concepts and terms, are in the debate. Much translation was necessary; much learning was achieved. This issue presents the results of this conference and aims at instigating further learning. It brings together the papers presented as revised by the participants after the conference. We hope that this collection can spur further interest in the kind of international and interdisciplinary research that would seem adequate for a private law beyond the state.

Private Law Pluralism and the Rule of Law

SSRN Electronic Journal, 2012

This Essay considers whether a pluralist account of private law can, notwithstanding its multiplicity, its dynamism, and its disavowal of neutrality, comply with the rule of law. My focus will thus be on two aspects of the rule of law: as a requirement that law be capable of guiding its subjects' behavior, and as a prescription that law not confer on officials the right to exercise unconstrained power. At first glance, a pluralist and perfectionist understanding of private law is vulnerable on both the guidance and the constraint fronts, but this impression is fortunately incorrect. Private law pluralism neither requires nor should it imply adopting the dubious nominalistic approach of case by case adjudication, which indeed undermines guidance. Rather, properly understood, private law pluralism supports, even requires, relatively stable and internally coherent-albeit properly narrowdoctrinal categories. Each such private law institution is governed by fairly precise rules alongside informative standards founded on the regulative principles of these institutions, enabling people to predict the consequences of future contingencies and to plan and structure their lives accordingly. These private law institutions are shaped and developed through both legislation and adjudication. Courts are appropriately involved in many of these processes because at least insofar as private law is concerned they typically enjoy no less legitimacy, from either a participation or an accountability perspective, than legislatures. Likewise, while the plurality of values involved in the molding of our private law institutions' regulative principles makes this a challenging endeavor, we have no grounds for assuming that the requirement of normative contextual inquiry typifying common law adjudication does not reliably constrain this judicial power.

From the Law of Nations to the Private Law of Mankind

2018

Introduction ...................................................................................... 101! I.! Historical Parallels ............................................................... 102! II.! Jus Gentium Privatum ......................................................... 104! A.! Natural Law/Positive Law .............................................. 105! B.! Universal Law/Comparative Law ................................... 107! C.! Floor/Ceiling ................................................................... 107! D.! Colonial Context/Human Empowerment ........................ 109! III.! “Distinct Individuality” ........................................................ 109! Conclusion ........................................................................................ 111