Is Private Law Meaningless?
Current Legal Problems, 2011
22 Pages Posted: 31 Aug 2011 Last revised: 2 Sep 2011
Date Written: August 31, 2011
Is private law meaningless? When we look at the cases, the statutes, the theories mentioned time-and-again in relation to private law, are we just looking at a maze of technical reasoning, or can we give some overall shape or meaning to what the law is doing? Many writers think they can. Some are thinking of a moral meaning – private law makes sense as a statement of personal responsibilities, and is in that sense rather more than a mass of technical rules. Others are thinking rather more in economic terms: private law embodies peoples’ rights and entitlements in the market-place, it defines what they can buy and sell, sets out the implications of each, and protects their choices to trade or not to trade. Those two sorts of explanation – the moral and the economic – are (in various versions) some of the main theories put forward here, and when people talk of Big Private Law Theory it is usually one of these that they are thinking of. There is a third sort of explanation, which does not aim quite so high, and that is purely doctrinal explanation. A theory of this sort gives a clear exposition of what private law is – sums it up in a few key propositions or taxonomic structures – and tries to leave it at that. There is a take-it-or-leave-it mentally with all of these big theories (a point will return to). Moralists are not much interested in arguing over whether morality matters, doctrinalists are not much interested in arguing over whether doctrine matters – though in each case, they definitely think it does. These big theories of private law are the topic of this essay.
Keywords: private law, contract, tort, restitution, corrective justice, civil recourse, DCFR
JEL Classification: K10, K11, K12
Suggested Citation: Suggested Citation