Troubled Foundations for Private Law: A Review Essay of 'The Foundations of Private Law' by James Gordley
Stephen A. Smith
McGill University - Faculty of Law
September 9, 2008
Canadian Journal of Law and Jurisprudence, Vol. 21, No. 2, 2009
Over the past three decades, James Gordley has written a series of articles and books arguing that different parts of western private law, both civil and common, can be explained using the ideas of a group of 16th century neo-Aristotelian Spanish writers known as the late scholastics. The Foundations of Private Law (2006) is the culmination of this ambitious project. The opening chapters provide an overview and defence of the late scholastics' legal theory and the project's multi-jurisdictional scope. Subsequent chapters apply the theory to property, tort, contract and unjust enrichment law in the United States, France, England, Germany, and Italy. Many of the discussions draw on previous work, but Foundations is an important addition to Gordley's scholarship. For the first time, Gordley defends the scholastics' theory as the best general theory of private law.
Drawing on two millennia of legal, philosophical, and political sources from a range of Western countries, Foundations is an impressive work of comparative and historical scholarship. But as a theory of private law it fails. Thanks in part to Gordley's earlier work the concepts of distributive and commutative justice that he uses to explain, respectively, property law and the law of obligations (contract, tort, and unjust enrichment) are now familiar to private law scholars. But whatever value they may have in other accounts, as explained in Foundations they are either meaningless or inconsistent with any plausible view of what the law is or should be. In Gordley's account, distributive justice is so heavily qualified as to be indistinguishable from wealth maximization. As for corrective justice, it is not clear why, if its point is to preserve distributive justice (as Gordley believes), we should care about it, nor how it can explain why the rules of tort, contract, and unjust enrichment are only concerned with certain ways in which distributive holdings can be upset and why their effect is often to further redistribute those holdings.
Number of Pages in PDF File: 20
Keywords: legal theory, private law, comparative law, tort, contract, unjust enrichment
JEL Classification: K10, K11, K12, K13
Date posted: September 11, 2008 ; Last revised: September 17, 2008