Post by Andrew Gold
Given the recent blog debate about the distinctiveness of private law, I would like to raise a separate but related issue. Often, when we talk about what private law is, we are concerned with what separates private law from other fields – how do we distinguish private law from public law? But there is another way people talk about what private law is. We may seek to understand what private law is, in contrast to what private law does. See Benjamin C. Zipursky, Pragmatic Conceptualism, 6 Legal Theory 457, 482 (2000) (discussing the distinction). This concern raises an interpretive question. How should we seek to understand private law concepts? And this question lies at the heart of much recent private law theory.
Private law theorists are increasingly focused on figuring out private law concepts – and attempting to do so from the law’s point of view. For those new to the field, I wanted to suggest some starting points in this literature. There are several groundbreaking works that develop this approach. See, e.g., Ernest Weinrib, The Idea of Private Law (1995) (chapter 1); Jules Coleman, The Practice of Principle (2001) (chapters 1-5); Benjamin C. Zipursky, Pragmatic Conceptualism, 6 Legal Theory 457 (2000). A particularly helpful overview of different interpretive criteria is Stephen A. Smith, Contract Theory (2004) (chapter 1). There are also economic arguments that emphasize private law concepts from the legal point of view. See Henry E. Smith, Modularity and Morality in the Law of Torts, 4 J. Tort L. 1 (2011). Finally, for important responses to some of the above work, see William Lucy, Method and Fit: Two Problems for Contemporary Philosophies of Tort Law, 52 McGill L.J. 605 (2007); Jody S. Kraus, Transparency and Determinacy in Common Law Adjudication: A Philosophical Defense of Explanatory Economic Analysis, 93 Va. L. Rev. 287 (2007).
Part of what makes private law theory a vibrant field is an ongoing debate about the concepts in private law.