Private Law and The Embedded Person

Abstract

Private law, we argue, is the law governing our horizontal, personal interactions in a variety of social settings; it is, in short, the law of the embedded person. To refine this understanding, we contrast it with three competing views, which identify “private” with, respectively, the “dissociated person,” the “executive agent,” and the “civic person.”

The first view is associated with the strict (Kantian) division of institutional and moral labor between private law and public law. The second, antithetical view, underlies the otherwise very different positions of the economic analysis of law and the left-leaning critics of liberalism and legalism. Finally, a third approach to private law smooths the rough edges of the first view by insisting that, in a democracy, citizens must not repudiate their civic duties even when interacting in their private capacity and, like the state, they too must respect the human rights of others.

A critical examination of these three prevalent views opens the normative space needed for elucidating our own competing understanding. Private law meets people not as dissociated entities, but rather as individuals embedded in their various interaction settings. Private law, on our view, neither reduces individuals to the role of state delegates nor derives their obligations to one another from any civic duties they owe (or not) to their compatriots.

Private law is the law of the embedded person because it has to address the human condition of interdependence and the fact of personal differences that, as they should, influence the basic rules of human interaction at every turn. Moreover, many private law conceptions and doctrines not only respond to the social settings in which their subjects are embedded but proactively participate in constituting these settings. We argue that a legitimate – let alone an appealing – private law should proactively seek to empower people’s self-determination. Furthermore, it should construct these settings in compliance with the rule fitting the embedded person: reciprocal respect for self-determination and substantive equality, which we call relational justice.