The Political Origins of English Private Law

Journal of Law and Society, Volume 40 (2013), Forthcoming

Osgoode CLPE Research Paper No. 2013/17

25 Pages Posted: 4 Apr 2013

See all articles by Dan Priel

Dan Priel

York University - Osgoode Hall Law School

Multiple version iconThere are 2 versions of this paper

Date Written: April 3, 2013

Abstract

The paper seeks to explain the emergence of the view that English law contains a fundamental divide between public and private law. This is a surprising view, since historically English law did not recognize a clear distinction between the two. Proponents of the divide explain it in terms of the internal rationality of law, and insist on the importance of keeping the divide as a means of keeping private law politically neutral. By contrast, I propose to explain this development as a response to the potential problem of political legitimacy arising from the fact that courts are in charge of making law in this area, despite being unelected and politically unaccountable. That by itself shows that the divide between public and private law is the product of political concerns, but I further argue that the prevailing view of law among proponents of the divide is a revival of A.V. Dicey’s conception of English law in general within the narrower domain of private law. As various scholars have shown, Dicey’s views on English law are, in part, the product of his political opinions. Therefore, if I am right in finding similarities between Dicey’s views of law and those of contemporary proponents of the distinctness of private law, this lends support to the conclusion that both are founded on similar political views.

Keywords: law and politics, A.V. Dicey, private law, rule of law, political legitimacy

Suggested Citation

Priel, Dan, The Political Origins of English Private Law (April 3, 2013). Journal of Law and Society, Volume 40 (2013), Forthcoming; Osgoode CLPE Research Paper No. 2013/17. Available at SSRN: https://ssrn.com/abstract=2244604

Dan Priel (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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