The Limited Autonomy of Private Law

30 Pages Posted: 9 Aug 2007

Multiple version iconThere are 2 versions of this paper

Date Written: August 9, 2007

Abstract

The relationship between private law adjudication (typified as the bipolar encounter between plaintiff and defendant) and social values usually associated with much broader settings (such as the pursuit of distributive justice by state legislation) is a perennial concern of legal theory. The task of this essay is to strike the middle-ground between the voices of private law autonomy and the total instrumentalization of private law for any desirable value, purpose, or state of affairs. I claim that neither autonomist theory nor its instrumentalist counterpart provides a satisfactory account of private law. Autonomist theory is implausible because private law rests on a thick perfectionist view of society and hence cannot claim to be neutral vis-à-vis social values. But unlimited instrumentalism is also misguided because, as autonomists insist, the bipolar structure of private law litigation indeed entails certain normative constraints. These two propositions yield the main conclusion of this essay: the normative infrastructure of any private law doctrine should be responsive both to (minor) bipolarity constraints on the one hand, and to social values appropriate to the pertinent category of human interaction on the other. The essay further explores the implications of this conclusion for three specific doctrinal issues: marital property, monetary remedies for breach of entitlements, and the right of entry (into property).

Suggested Citation

Dagan, Hanoch, The Limited Autonomy of Private Law (August 9, 2007). Available at SSRN: https://ssrn.com/abstract=1005807 or http://dx.doi.org/10.2139/ssrn.1005807

Hanoch Dagan (Contact Author)

Berkeley Law School ( email )

890 simon hall
215 Bancroft way
berkeley, CA 94720
United States

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