There is plenty to argue about on the question of what properly falls under the heading of private law. Jeffrey Lipshaw, however, goes further in a recent post suggesting that the idea of private law is “oxymoronic” in the same way that the idea of a private language is oxymoronic. In support of his claim he notes that a contract is an agreement expressed in language, the meaning of which might have to be determined by third parties such as judges and jurors. It follows, supposedly, that all contracts are “public.”
Jeff’s position appears to be a particularly dramatic rendering of the now-familiar dogma that “all law is public law.” The standard version of that dogma, as applied to contract law, plays out as follows. Although a contract is an agreement between private parties, contracts are adjudicated and enforced by state machinery, therefore contract law is no less public than any other law. Jeff has now upped the ante, for he seems to say that what makes contract law (and all law) public is simply that it involves the use of language!
We are unpersuaded. One could say that the point of contract law is to enable parties to use the public resource of language to enter into agreements that are underwritten by the promise of enforceability through the courts. It would hardly follow that contract law, and contracts, are in no meaningful sense private.
The adjective “private” means different things in different contexts. Contract law is private law because it sets up a framework through which the contracting parties create obligations owed to, and rights against, one another, and because it specifies that a breach of the relevant obligations will give rise to a private right of action. The mere fact that a third party might have to adjudicate a dispute about the terms of the agreement hardly suffices to render the agreement irrelevant—indeed, it presupposes an agreement exists to be interpreted.
We do not deny that private law has public aspects. It is law, after all. Nevertheless, they do not make “private law” a contradiction in terms. Private law is not secret law!
John Goldberg & Henry Smith