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The Normativity of Private Law

Oxford Journal of Legal Studies, pp. 1-28, 2011

36 Pages Posted: 7 Mar 2011  

Stephen Smith

McGill University - Faculty of Law

Date Written: March 4, 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.

Keywords: Private law, legal theory, law and economics

JEL Classification: K10, K13, K11

Suggested Citation

Smith, Stephen, The Normativity of Private Law (March 4, 2011). Oxford Journal of Legal Studies, pp. 1-28, 2011. Available at SSRN:

Stephen Smith (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal, Quebec H3A 1W9
1-514-398-6633 (Phone)
1-514-398-3233 (Fax)

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