The Domain of Private Law

Abstract

Private law theories tend to narrowly delineate their ambitions: many theories limit private law’s normative aspirations to a circumscribed set of liberalism’s core commitments, restrict its horizons to the boundaries of the state, and marry its norms with only one type of legal institution (courts). These limited ambitions, we argue in this Article, are normatively unwarranted. Each of these (often implicit) limitations distorts our understanding of the law governing people’s interpersonal relationships in their capacity as private individuals. Each of them improperly marginalizes, and at time renders normatively dubious, legal doctrines that give effect to the liberal commitment that captures the moral center of private law, namely, reciprocal respect for self-determination and substantive equality.