Liberty at the Borders of Private Law

77 Pages Posted: 7 Jul 2015 Last revised: 20 Nov 2015

Date Written: July 6, 2015

Abstract

Liberty is both dependent upon and limited by the State. The State protects individuals from the coercion of others, but paradoxically, it must exercise coercion itself in doing so. Unfortunately, the reliance on the State to deter coercion raises the possibility that the State’s powers of coercion might be abused. There is, not surprisingly, therefore a wide range of literature on the relationship between law and liberty, but most of it focuses on the relationship between public law and liberty. This article focuses on the relationship between private law and liberty. Private laws are enforced by courts. Since the judiciary is a branch of government and courts ultimately derive their authority from the State, the State’s power of coercion is implicated by judicial enforcements of private laws. In fact, the State’s role in creating and enforcing private laws is no less important to liberty than its role in creating and enforcing public laws, since private legal arrangements increasingly affect deeply personal and intimate parts of peoples’ lives, including their uses of their own homes as well as their lifestyle choices and moral decisions. This article observes that the enforcement of some private legal rules and doctrines serves to advance liberty, but that the enforcement of others impinges upon it. It also therefore suggests ways in which liberty could be advanced by reforming certain private laws or by limiting the role of courts in the enforcement of some private legal arrangements.

Keywords: Liberty, Courts, State Action, Property, Contracts

JEL Classification: B31, D63, K11, K12, K40, L31, M51, R00

Suggested Citation

Smythe, Donald J., Liberty at the Borders of Private Law (July 6, 2015). Akron Law Review, Forthcoming, California Western School of Law Research Paper No. 15-05, Available at SSRN: https://ssrn.com/abstract=2627248

Donald J. Smythe (Contact Author)

California Western School of Law ( email )

225 Cedar Street
San Diego, CA 92101
United States

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