The Rise and Fall of Private Law Theory

Abstract

Over the last four decades of common law thought, there have been increasingly sophisticated attempts to develop comprehensive theories of private law. Chief amongst these are (1) theories of corrective justice, (2) economic theories, and (3) formalist accounts. The common feature of these apparently diverse “grand theories” is a lack of trust in collective action: legislatures are not trusted to serve the public good, individuals are trusted only to pursue their private interests, and judges are trusted only when they focus on technical legal issues, not when they ask whether their decisions may have a broader significance. These accounts implicitly contrast the rights of individuals with the good of the community. Yet the opposition is false: safeguarding the rights of individuals is safeguarding the good of the community, and vice-versa. Their approach makes large areas of private law either invisible or incomprehensible, and leave them with little to say on how the law can be reformed or improved. Trust in collective institutions, as well as in individuals, is ubiquitous in all modern societies – rightly so, necessarily so – and as this is more widely appreciated, these grand theories are progressively losing their distinctive character as their better points are absorbed back into mainstream legal thinking.

Keywords: private law theory, contract law, tort, corrective justice

JEL Classification: K10, K12, K13