How Should We Understand Private Law Concepts? — Andrew Gold

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.

3 thoughts on “How Should We Understand Private Law Concepts? — Andrew Gold”

  1. Andrew, could you explain the “is” versus “does” distinction? Is it an assumption that the law exists as something real – a noumena – and is capable of being separated analytically into categories (even natural kinds)? If so, how does that cash out? NB: I think (and I’ve written) that metaphors, even like the one in the post, “the law’s point of view,” implies a kind of thickness, an ironically concrete conception of the law as REAL to which even positivists ascribe. As opposed to being a social “doing” that is really only meaningful when conceived of as a “doing.”

  2. Jeff, that’s a good question, but I think there is more than one approach involved here. Ernest Weinrib’s formalist account of private law is not the same, for example, as Ben Zipursky’s pragmatic conceptualist account. So I’m hesitant to give a single answer — my aim in the post above is to describe a family of approaches. Here is one possibility, however: in his Pragmatic Conceptualism paper, Zipursky argues that the concepts and principles embedded in tort law “are the law”. See 6 Legal Theory 457, at 484. Zipursky suggests further that a sole focus on what the law accomplishes will not allow us to fully understand these concepts.


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