Origins of the Public/Private Theory of Legal Systems

Abstract

In this paper, published as a chapter in Private Law: Key Encounters with Public Law (Kit Barker and Darryn Jensen, eds., Cambridge University Press, 2014), I develop a model of legal systems from very basic conceptions of public and private institutions. From the bare understanding of a public as a group of humans with at least one common project, I build the theory block by block, showing the fit of each with some of the great theoretical advances of the 20th century, including those of Holmes, Hohfeld, H.L.A. Hart, and Robert Cover. I arrive at a picture of legal systems as a union of institutions and information, together governing a public’s coercive resources. The theory makes clear the conceptual roles of Contract Law, Tort Law, Criminal Law, Constitutional Law, and Procedure and offers both a rich descriptive picture of law’s basic template and an institutional calculus with immediate normative consequences. The purposes of the paper are to serve as an introduction to the public/private theory, to connect that theory to other work in jurisprudence, and to lay the groundwork for a more general and encompassing theory currently in progress.

Keywords: public, private, jurisprudence, theory, legal systems, legal theory