Against Essentialism in Private Law Theory: Private Law as an Artifact Kind

Abstract

Private law theory has long been torn between demands of “internalist” theories shearing private law from any kind of consequentialist value and “externalist” renderings entailing a robust push for efficiency-oriented reasoning. The prevailing division of “external” and “internal” reflects essentialist readings of private law, a search for its “true” nature. Alas, or so this chapter argues, there is none. Private law accommodates and rests on a mixed set of norms and values with weights and relevance changing over time, rendering any partisan account ineffective. Efforts to cleanly sort internal and external views and to separate an inside of private law from its outside in terms of moral norms and values must remain futile. Consequently, a private-law theory aspiring to describe and analyze private law as it is practiced has to acknowledge its ambivalent and multipolar nature. In the end, this strengthens the autonomy of law because private law cannot be pocketed by scholars sailing under the flag of a single-value picture of a multi-value world.

Methodologically, this chapter draws on artifact theory. Both legal positivists and adherents of natural law accept that law is an artifact. Bringing artifact theory to bear upon private law thus appears promising, especially since it does not carry a distinct concept of law as baggage. Abstracting from substantive theories about what the law or “just” about what private law is, an artifact approach helps shedding new light on ontological inter-dependencies of materials a positivist considers “existing law” and the insights of so-called externalists concerning the law’s transient character and the importance of outside perspectives.