Justifying Private Law

Abstract

As recent work suggests, a central concern in contemporary private law theory is the justification of private law. Private law, as all exercises of state coercion do, “calls for a justification.” Part of what private law theory ought to do, from this perspective, is to provide reasons in favor of private law and the institutions, practices, and norms associated to it.

In this paper, I want to interrogate what it means to offer a justification of private law. In this sense, the paper is methodological. It is concerned with questions about how private law theorists ought to understand and fulfill their justificatory aspirations. There is a way, however, in which the argument offered here is substantive. While the argument does not present a specific substantive theory about the aims, ends, or values that justify private law, it offers at least the beginnings of a distinctive view about the process of justification of private law institutions—and legal institutions, more generally—that might have important implications for private law theory and the ongoing debates between private law theorists. That distinctive view, as will become clear below, is one that puts ordinary individuals and their concerns at the center of justification. Yet the view also treats the internal conceptual structure of private law seriously. The view, in other words, rejects both the tendency towards isolating private law that is characteristic of Kantian formalism and the tendency to reduce law to the language of economics that characterizes certain forms of law and economics.