Post by Ted Sichelman
One aim of New Private Law is to reinvigorate the notion of “private law” in the face of realist and critical legal studies (CLS) critiques of the proverbial “public-private” law distinction.
These critiques center on three claims. First, the State often regulates in areas thought to be within the realm of private law, such as real property and contracts. Second, the State is necessary to enforce private economic relationships, such as those governing real property and contracts. Third, the State is a vague and ambiguous concept, and it is often difficult to characterize what does and doesn’t fall within its scope. In this regard, some contend that many private actors wield “power” in ways similar to those of the State.
Here, I will briefly argue that the theories of Wesley Hohfeld, the early 20th century private law scholar who set forth a typology of rights, duties, privileges, powers, and other legal relations to describe private law, offer a platform to (in Henry Smith’s terms) “modularize” – and, hence, reinvigorate – the public-private law distinction.
Although some of Hohfeld’s ideas lend themselves to a realist critique, many are quite formal, at least in what I term a “structural” sense—namely, that legal relations among legal actors must adhere to a precise format.
Simplified, the structure of legal relations requires two legal actors, a Hohfeldian legal relation, and an action concerning that relation. For instance, one party’s duty not to commit a battery against another individual can be characterized as follows:
X duty Y (X not intentionally inflict harmful or offensive contact on Y)
X and Y are the legal actors, the Hohfeldian relation one of “duty,” and the action is “X not intentionally inflicting harmful … contact on Y.” All first-order Hohfeldian relations follow this structure, with X owing (or not owing) Y a duty with respect to a given action.
A large body of private law (other than that involving the formation of contracts) can be categorized quite well via this structure. Specifically, any Hohfeldian duty-relation involving two private actors is precisely “private law.” In this regard, an actor is not “private” when that actor is “the State” or is an agent of the State, either directly or indirectly (e.g., in a qui tam action).
Private-private duty-relations encompass the vast majority of tort law, real property law, intellectual property law (as currently constituted), the duties imposed by contract and commercial law, and many other forms of private law.
Private-public or public-public duty-relations, on the other hand, would typically fall outside the scope of private law. Thus, constitutional law, criminal law, administrative law, and other forms of law involving the State qua State (that is, not as a private actor), would not be characterized as private law.
Similarly, the Hohfeldian framework can be used to modularize so-called legal powers. A power allows its holder to create, terminate, or change a legal relation through legal means. When a private party wields a power, typically it is via the formation of a contract. For instance, when a land owner transfers property to another, the owner’s Hohfeldian rights to keep tresspassers off the land are extinguished, and those rights inhere in the new owner.
When the State wields power, it typically does so via the enactment or modification of law. Although the State may sometimes act as a “market participant” (creating difficult interpretive questions), generally the State acts as a governmental authority. Like duty-relations, when a private person wields a legal power, private law is at issue; when the State wields power in a governmental fashion, public law is at issue.
This Hohfeldian approach fairly neatly divides—and, hence, modularizes—the public-private law distinction for duties and powers under the law. Indeed, returning the realist and CLS critiques, this approach arguably rebuts two of three contentions presented above.
First, although private and public law may concern a similar (or the same) “object” of a Hohfeldian legal relation – for instance, a piece of land – private law concerns the legal relations of purely private actors while public law does not. Thus, the fact that duties with respect property, contract, and the like are simultaneously owed to private legal actors and the State does not vitiate the public/private law distinction. (Such a view may vitiate the notion that there is a “private” sphere beyond the reach of law, but that concept is quite different from that of private law.)
Second, although the State may enforce all duty and power relations, some of those relations concern solely private actors (private law) and others do not (public law). Who enforces a Hohfeldian relation is thus irrelevant to the public/private law distinction.
Nonetheless, the Hohfeldian approach offered here does not address the claim that “the State” is a concept so vague and ambiguous as to be incoherent. Rebutting that criticism requires further work, which I will present in a future post.
So taking it on faith there is a coherent notion of the State, the realist and CLS critiques do not impugn the public/private law distinction. Although there are some aspects of the law that fall into gray zones, they are infrequent enough to achieve a suitably modular system to deal with the vast majority of everyday legal problems – and related jurisprudence – addressed not only by judges, attorneys, and clients, but by public and private law scholars alike.