What Has Private Law Ever Done for Justice?

Law Quarterly Review, 2018

Over the last four decades of common law thought, there have been increasingly sophisticated attempts to develop comprehensive theories of private law. Chief amongst these are (1) theories of corrective justice, (2) economic theories, and (3) formalist accounts. The common feature of these apparently diverse “grand theories” is a lack of trust in collective action: legislatures are not trusted to serve the public good, individuals are trusted only to pursue their private interests, and judges are trusted only when they focus on technical legal issues, not when they ask whether their decisions may have a broader significance. These accounts implicitly contrast the rights of individuals with the good of the community. Yet the opposition is false: safeguarding the rights of individuals is safeguarding the good of the community, and vice-versa. Their approach makes large areas of private law either invisible or incomprehensible, and leave them with little to say on how the law can be re...

The University of Chicago Law Review, 2001

Benson has written or cowritten numerous articles and two other books on legal topics. The books are The Enterprise of Law: Justice without the State (Pacific Research Institute 1990) and The Economic Anatomy of a Drug War (Rowman & Littlefield 1994) (with David W. Rasmussen). 2 Richard A. Posner, Economic Analysis of Law ch 21-22 (Aspen 5th ed 1998) (discussing criminal procedure and law enforcement). 3 I found forty-nine references to papers written by or coauthored by Benson in the bibliography of To Serve and Protect. Since there are papers not referenced there, this bibliographic listing represents only a subset of Benson's output. 4 This is also the appropriate place to make disclaimers. I know Bruce Benson, have participated in a number of conferences with him, and have been familiar with his work for over ten years. Along with quite a few others, I read and commented on a portion of this book when it was in manuscript form. Benson also used a manuscript of mine, analyzing private provision of law in the nineteenth-century American West, as a minor source for the book.

2011

While combativeness is central to how our culture both experiences and conceptualizes litigation, we generally notice it only as a regrettable cost. This Article offers a less squeamish vision, one that sees in the struggle of people suing one another a morally valuable activity: the vindication of insulted honor. This claim is offered as a normative defense of a civil recourse approach to private law. According to civil recourse theorists, tort and contract law should be seen as empowering plaintiffs to act against defendants, rather than as economically optimal incentives or as a means of enforcing duties of corrective justice. The justification of civil recourse must answer three questions. First, under what circumstances-if any-is one justified in acting or retaliating against a wrongdoer? Second, under what circumstances does the state have reasons for providing a mechanism for such action? Finally, how are the answers to these questions related to the current structure of our private law? This Article offers the vindication of wronged honor as an answer to these three questions. First, I establish the historical connection between honor and litigation by looking at the quintessential honor practice, dueling. Then I argue that the vindication of honor is normatively attractive. I do this by divorcing the idea of honor from unsavory associations with violence and aristocracy, showing how it can be made congruent with certain core modern concerns. In particular, when insulted parties act against wrongdoers, they reestablish the position of respect and equality that the insult upset. I then show how having the state provide plaintiffs with a means of vindicating their honor avoids making the political community complicit in the humiliation of its citizens and provides those citizens with a means of exercising their agency in ways that provide a foundation for self-respect. Finally, I show those areas of private law where honor operates most powerfully as a justification for providing recourse through the courts, while acknowledging that it operates less powerfully as a reason in other areas.

2011

Already the title of this lecture may raise the eyebrows. We all have, at least: we think we have, some notion of social justice, but what has the law to do with it? Since the days of Roman law more than two millennia passed by. Are we able to identify any contribution of the law in the past to the promotion of social justice?

2010

The complexity of the issue of global reach of private law remedies and procedures is evident in the light of the diverse studies assembled in this collection. Several factors are at play, moral, political, social, cultural and economic. Even this classification of the issues itself is arguably controversial. To make sense of the enormous amount of development in this field and prepare for the future, certain pointers of strategy, for active participants as well commentators and other bystanders, are necessary. Any reflection on the law and legal evolution, even more importantly in a context of multi-layered transnational evolution such the one under consideration, must start by being firmly grounded in reality. The following, it is submitted, are important questions that the present realities of the global reach of private law remedies and procedures pose:

Research Handbook on Private Law Theory, 2020

Private Law in the 21st Century

SSRN Electronic Journal, 2021

This essay reviews four recent English-language essay collections, each of which proposes a vision of private law theory – that is, of how private law appears in the light of a wider understanding of the world. It concentrates on how each collection gives some sort of shape to the emerging discipline. Discussion of the shape, meaning and significance of private law is of course nothing new; but the recent massive outpouring of theory, and the issues which have been treated as important, require some discussion of the intellectual climate which has led us to this place. For the most part, this essay argues, the discussion has been governed by the increasing obsolescence of classical private law concepts, which the more progressive writers have taken as a call to develop new concepts, and the more traditional writers have taken as a call to defend what is valuable about them; over time, this has increasingly pushed the traditionalists to a position where they can describe some (though hardly all) of what we all see, but which is largely impotent in justifying it – that is, in explaining why it is worth retaining. Meanwhile, the terms of debate have become increasingly narrow, as continuity is privileged over change, the lawyer’s point of view privileged over that of other community members, and national court-based law is emphasised over the many other forms of social ordering. Yet there are now also welcome signs of a broader approach, by which different perspectives are seen as complementing one another rather than as rivals, and there is (sometimes at least) genuine enquiry into what is really universal and what is merely a local present-day peculiarity. And we might be approaching – to put it no higher– the time when private law theory is a genuine conversation rather than as a mere cacophony of voices.

SSRN Electronic Journal, 2012

This Essay considers whether a pluralist account of private law can, notwithstanding its multiplicity, its dynamism, and its disavowal of neutrality, comply with the rule of law. My focus will thus be on two aspects of the rule of law: as a requirement that law be capable of guiding its subjects' behavior, and as a prescription that law not confer on officials the right to exercise unconstrained power. At first glance, a pluralist and perfectionist understanding of private law is vulnerable on both the guidance and the constraint fronts, but this impression is fortunately incorrect. Private law pluralism neither requires nor should it imply adopting the dubious nominalistic approach of case by case adjudication, which indeed undermines guidance. Rather, properly understood, private law pluralism supports, even requires, relatively stable and internally coherent-albeit properly narrowdoctrinal categories. Each such private law institution is governed by fairly precise rules alongside informative standards founded on the regulative principles of these institutions, enabling people to predict the consequences of future contingencies and to plan and structure their lives accordingly. These private law institutions are shaped and developed through both legislation and adjudication. Courts are appropriately involved in many of these processes because at least insofar as private law is concerned they typically enjoy no less legitimacy, from either a participation or an accountability perspective, than legislatures. Likewise, while the plurality of values involved in the molding of our private law institutions' regulative principles makes this a challenging endeavor, we have no grounds for assuming that the requirement of normative contextual inquiry typifying common law adjudication does not reliably constrain this judicial power.