When Private Law Theory Is Close Enough
Forthcoming, Thilo Kuntz and Paul B. Miller, eds., Methodology in Private Law Theory (Oxford University Press)
24 Pages Posted: 6 Feb 2023 Last revised: 28 Apr 2023
Date Written: February 3, 2023
Private law theorists often adopt concepts that are a close, but imperfect, fit for the concepts actually used in the law. Such theorists employ concepts that diverge moderately from the legal concepts courts themselves employ. In other cases, theorists may match the law’s concepts as a legal matter, but they employ concepts that diverge moderately from the concepts found in moral reasoning. Such theories diverge to some degree from the moral understanding, but they are still ‘in the right ballpark.’ This paper assesses the value in legal theories that come close to a set of target concepts, but which are not quite a fit for them.
Keywords: Private Law Theory, Tort, Contract, Fiduciary Law, Interpretivism, Normative Theory
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