Private Law and Public Discourse

Abstract

Democracies need institutions that help to build public consensus on fundamental principles of justice. However, the major public institutions associated with this task – electoral institutions, the press, education, and civil society—each face a trade-off between a high degree of governmental control over their agendas, on the one hand, and self-segregation by participants, on the other. This Article identifies private law—the litigation of private claims and their judicial resolution—as an unlikely but ultimately critical site for building consensus on political principles. After laying out what public discourse requires (and what it does not), the Article argues that private law is properly regarded as a site for public discourse even though courts are an arm of the state and even though private law litigants pursue self-interested claims. The Article then goes on to show that private law’s ground-level, bilateral process of reconciling opposing reactions to private encounters avoids some of the limitations of other discursive sites. Private law turns out to be a distinctive centripetal force on how we variously think about what justice demands.

Keywords: private law, public discourse, overlapping consensus, reactive attitudes, public sphere