The Public Nature of Private Law?

Research Handbook on Private Law Theory, 2020

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...

2008

ference and the closed workshop showed how varied the approaches and focuses, even the concepts and terms, are in the debate. Much translation was necessary; much learning was achieved. This issue presents the results of this conference and aims at instigating further learning. It brings together the papers presented as revised by the participants after the conference. We hope that this collection can spur further interest in the kind of international and interdisciplinary research that would seem adequate for a private law beyond the state.

Jurisprudence, 2019

Nicholas McBride's The Humanity of Private Law: Part I. Explanation is, in many ways, a ground-breaking work in private law theory. The book makes highly ambitious claims about the nature of private law, human flourishing and Western liberal societiessomething rather unusual in contemporary legal theory, in which we have grown accustomed to a more piecemeal approach to legal phenomenaand substantiates those claims with arguments taken from English private law, history and philosophy. McBride does not shy away from discussing highly contested issues such as the true nature of morality, 1 the history of English private law, 2 or even fairly abstruse topics such as the metaphysics of Being and 'the implications of an undifferentiated noumenal reality for a Kantian right to independence'. 3 As one would expect with a wide-ranging book such as this, some readers might feel a bit disappointed with the length and depth in which some of the issues are addressed, and some readers might find that some of the arguments are not particularly well crafted. Its shortcomings notwithstanding, McBride's book is an original and welcome addition to the literature on private law theory that deserves to be widely discussed by philosophers of private law, even by those not particularly interested in English private law.

University of Toronto Law Journal, 2011

In Kant's philosophy of law “public right” refers to the condition in which public institutions guarantee rights. This lecture deals with the relationship between public right and the rights of private law. In accordance with corrective justice, private law links the parties to a transaction bilaterally, so that they are subject to correlatively structured bases of liability. In contrast, public right is omnilateral, linking everyone to everyone else. Two normative ideas inform public right: publicness (that public institutions secure everyone's rights on the basis of reasons that can be known and acknowledged by all) and systematicity (that the norms and institutions of law form a systematic whole). In standard cases public right makes no difference to a private law controversy except to add the dimensions of publicness and systematicity. In some circumstances, however, public right alters the principle on which a court resolves a controversy, without, however, changing the...

SSRN Electronic Journal, 2014

This article uses Robert Nozick's account of utopia as a framework for utopias to examine the normative underpinnings of private law. Nozick's insight, I argue, points to private law's irreducible role in upholding individual self-determination and reveals its function in vindicating a robust conception of relational justice. These underpinnings are far removed from the libertarian foundations ascribed to private law not only by Nozick and other libertarians but also by Kantians and many division-of-labour liberal egalitarians. They require us to discard the conventional conceptions of property (as sole and despotic dominion) and of contract (as a means for delineating the boundaries of protected domains), which Nozick espouses. Private law's underlying normative commitments to both individual self-determination and relational justice also have important distributive implications. These implications, however, are distinct from the considerations of justice in holdings that concern the institutions responsible for distributive justice.

Academia Letters, 2021

Nowadays, the centrality of constitutional law within the legal sphere is evident. I am not referring to constitutional law as a fundamental (and global) instrument for the protection of the fundamental rights of the individual. Instead, I am referring to constitutional law as a subject, that is, a specific disciplinary sector. In a not-so-distant past, a subject that above all served to know the structure of the State-organization. Progressively, constitutional law has asserted itself as the backbone of all contemporary liberal-democratic legal systems. At the same time, as is well known, it is a phenomenon that still persists and that requires those continuous theoretical refinements that have become necessary due to the very constitutionalization of juridicity. From this perspective, the traditional distinction between civil law and common law remains firm, in a historical key, but it must be critically reconsidered with respect to what we could call the politics of contemporary law, focused on the importance of argumentation oriented to the consequences. Here, then, is the sense of the novelty represented by constitutional law and the reason for its methodological success: today, constitutional law is the foundation of legal argumentation. Constitutional law is the fuel (a fuel that feeds itself, we might say) of legal construction, of that categorical constructivism that has nothing authoritarian about it-in the perspective of the rationalistic constructivism famously criticized by Friedrich Hayek)-, but much liberal. Any issue has a connection to the constitutional level. In the past, this connection was often left somewhat in the shade or even radically denied. On the contrary, today, this connection is emphasized and sometimes taken to its extreme consequences within the perspective (precisely political) of the integral protection (and strengthening) of the individual sphere, which in this sense is projected onto juridicity, transforming it.

Private Interest and Public Interest in European Legal Tradition, 2015

The division of law into "public" and "private" was introduced by Roman lawyers, with the criterium divsionis being based on the interest protected with each branch of the legal system. As Ulpian famously formulated: Publicum ius est quod ad statum rei Romanae spectat, ius privatum est quod ad singulorum utilitatem. 1 Public law is that which respects the establishment of the Roman commonwealth, private that which respects individuals' interests, some matters being of public and others of private interests. 2

Rabels Zeitschrift fuer auslaendisches …, 2007