The Rise and Fall of Private Law Theory (original) (raw)

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.

The Public Nature of Private Law?

C. Michelon, THE PUBLIC IN LAW, G. Clunie, C. …, 2011

In this paper the author challenges the liberal vision of the private sphere as a realm of in which agents are justified in acting without taking into consideration anyone else's interests.

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 humanity of private law: Part I Explanation

Jurisprudence, 2019

Nicholas McBride's The Humanity of Private Law: Part I. Explanation is, in many ways, a ground-breaking work in private law theory. The book makes highly ambitious claims about the nature of private law, human flourishing and Western liberal societiessomething rather unusual in contemporary legal theory, in which we have grown accustomed to a more piecemeal approach to legal phenomenaand substantiates those claims with arguments taken from English private law, history and philosophy. McBride does not shy away from discussing highly contested issues such as the true nature of morality, 1 the history of English private law, 2 or even fairly abstruse topics such as the metaphysics of Being and 'the implications of an undifferentiated noumenal reality for a Kantian right to independence'. 3 As one would expect with a wide-ranging book such as this, some readers might feel a bit disappointed with the length and depth in which some of the issues are addressed, and some readers might find that some of the arguments are not particularly well crafted. Its shortcomings notwithstanding, McBride's book is an original and welcome addition to the literature on private law theory that deserves to be widely discussed by philosophers of private law, even by those not particularly interested in English private law.

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.