The Normativity of Private Law
Stephen A. Smith
McGill University - Faculty of Law
March 4, 2011
Oxford Journal of Legal Studies, pp. 1-28, 2011
Private law presents itself in normative language - in the language of rights, duties, obligations, and so on. This language presumes that private law tells citizens how they ought to behave. It is striking, therefore, that contemporary legal theorists often explain and evaluate private law with little reference to normativity. Theorists who write from welfarist and other broadly utilitarian perspectives, in particular, typically analyse private law exclusively in terms of the material incentives that it creates. These writers focus on the material consequences (penalties, rewards, costs, subsidies, etc.) that the law attaches to actions and, in particular, on the ways in which the practice of attaching such consequences influences citizens’ behaviour. Against this background, this article makes three main arguments: (1) citizens sometimes do what legal rules stipulate simply because they are legal rules and not because of the incentives that the law offers for compliance; (2) legal normativity is practically important for anyone interested in how the law influences behaviour because legal norms influence behaviour in different ways than legal incentives influence behaviour; and (3) legal normativity is important not just for understanding private law rules, but also for understanding private law court orders. At its broadest, then, this article’s argument is that it is impossible to understand the structure and operation of private law without understanding the importance of legal norms qua norms - and that this is true for utilitarians as much as for anyone else.
Number of Pages in PDF File: 36
Keywords: Private law, legal theory, law and economics
JEL Classification: K10, K13, K11Accepted Paper Series
Date posted: March 7, 2011
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