The Political Origins of English Private Law

28 Pages Posted: 12 Nov 2013

See all articles by Dan Priel

Dan Priel

York University - Osgoode Hall Law School

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Date Written: November 2013

Abstract

The article seeks to explain the emergence of the view that English law contains a fundamental divide between public and private law. I propose to explain the divide, not as a conceptual distinction, grounded in the internal rationality of law, but as a response to the potential problem of political legitimacy arising from the fact that in the domain of private law courts are constantly engaged in making substantive law. That by itself shows that the divide between public and private law is politically motivated, but I further argue that the prevailing view of law among proponents of the divide revives Dicey's conception of the common law within the narrower domain of private law. Since Dicey's views are widely believed to be motivated by his political views, if I am right, this lends support to the conclusion that the views of defenders of the divide are grounded in similar political positions.

Suggested Citation

Priel, Dan, The Political Origins of English Private Law (November 2013). Journal of Law and Society, Vol. 40, Issue 4, pp. 481-508, 2013. Available at SSRN: https://ssrn.com/abstract=2353137 or http://dx.doi.org/10.1111/j.1467-6478.2013.00638.x

Dan Priel (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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