The Distinction Between Private Law and Public Law

Research Handbook on Private Law Theories (Hanoch Dagan & Benjamin Zipursky eds., 2021 Forthcoming)

22 Pages Posted: 29 Jul 2020

See all articles by Hanoch Dagan

Hanoch Dagan

Tel Aviv University - Buchmann Faculty of Law

Benjamin C. Zipursky

Fordham University School of Law

Date Written: July 2, 2020

Abstract

Twentieth Century legal theorists – especially the American legal realists – provided vigorous critiques of the putative distinction between private law and public law, persuading jurists that the distinction relied upon legal formalism. In the latter third of the Twentieth Century, the law and economics school constituted a focused and dominant version of the legal realist capture of private law theory. By the 1990s, however, new forms of private law research developed, many of which we characterize as instances of “neo-realism.” And philosophical theorists brought private law theory full circle, re-embracing the distinction between private law and public law. These views are depicted here as forms of “neo-conceptualism,” and they are in many ways the polar opposite of neo-Realism. In this Chapter, Dagan and Zipursky each defends a view of the private/public distinction that falls in between the neo-realists and the neo-conceptualists. Dagan’s relational justice theory is a form of neo-realism highly receptive to the deontological concerns of the neo-conceptualists. Zipursky’s pragmatic conceptualism is a form of neo-conceptualism sensitive to the pragmatic and modernist concerns of legal realism.

Suggested Citation

Dagan, Hanoch and Zipursky, Benjamin C., The Distinction Between Private Law and Public Law (July 2, 2020). Research Handbook on Private Law Theories (Hanoch Dagan & Benjamin Zipursky eds., 2021 Forthcoming), Available at SSRN: https://ssrn.com/abstract=3641950

Hanoch Dagan (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel
+972 3 640 7302 (Phone)

Benjamin C. Zipursky

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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