Private and Public Law Fundamentalisms — Daniel Markovitz

Post by Daniel Markovitz

I’d like to begin by thanking John and Henry for inviting me to post here and for permitting me to join up a little late.

I intend to devote my posts to reportage as well as to opinion—among other things by advertising new scholarship in private law, especially by writers in the early stages of their careers, that I regard as excellent.  So please send manuscripts for me to relate.

Nevertheless, I’d like to devote this initial post to explaining why I am delighted that this blog — and other similar projects, including Yale’s newly inaugurated Center for the Study of Private Law — has been got going and why I’m glad to participate.

Private law, at least as a category, has acquired a bad reputation in US American legal thought. The category private law is thus associated with a kind of fundamentalism, which insists that certain doctrinal constructions — most notably, contract, property, and tort, but also any number of others as whim or ideology have from time to time recommended — possess a historical or even logical necessity, rather than being influenced and even produced by contingent forces and moral or political choices.  The category is also associated with the roughly neo-liberal position that the public institutions of the state ought not to interfere with private law rights, even in the name of justice.  In its worst—but far from uncommon—construction, this private law fundamentalism is employed as part of an argument (usually conclusory) that the necessity of the doctrinal constructions warrants or even entails the neo-liberal ought.

I reject all of these propositions—indeed, most seem to me plainly absurd.  Nevertheless, I believe that private law remains a valuable category for legal thought.

It is one thing to accept that the doctrines of private law depend causally on past and present political and hence public choices—as of course they do—and quite another to insist that this causal dependence entails a sort of normative dependence, under which private law doctrines owe their justifications to the political forces that have, causally, shaped them.  Moreover, it is again one thing to accept that private law doctrines are answerable to public values, so that the state may adjust private law in response to claims of justice—again, as they of course are and it of course may—and quite another to insist that being subject to critique by public values entails that private law is exhausted by these values or reduced to a technology of public justice.  To reject private law as a useful explanatory category or an apt evaluative one is to affirm each of these more extreme entailments.  Nothing in the arguments that properly reject private law fundamentalism requires, or even recommends, adopting a public law fundamentalism that occupies the opposite extreme and rejects private law tout court.

Moreover, there are good reasons for thinking private law, in reciprocal engagement with public law, is both useful for legal understanding and admirable in legal practice.  

An analogy helps to explain why.  Consider, therefore, the relationship between political and moral ideals.  Political principles, including importantly principles of justice, assert a causal influence over the moral views of citizens, in any number of ways.  Moreover, the state may and indeed sometimes must restrain moral practices to protect or to promote justice.  But none of this entails that morality is exhausted by justice or that morality should be reduced to a technology of justice. Indeed, such suggestions constitute the centerpiece of the wrong of totalitarianism.  The dominant traditions of democratic and liberal political thought thus all — even as they focus on constructing and defending theories of justice and states that might implement justice — expressly carve out and defend spaces for moral life that are insulated from justice’s demands.

Public and private law stand in a relationship much like the relationship between justice and morality.  Public law concerns the legal relations among citizens.  But citizens do not interact exclusively as citizens.  Rather, they also interact privately, simply as legal persons.  And although the state may and ought—in the name of justice—regulate these interactions among persons, the values of these private interactions is not exhausted by considerations of justice (as the value of moral relationships is also not exhausted by justice).  Instead, private interactions might serve any number of values, including solidarity, collaboration, recognition, freedom, and efficiency, to name but a few.  

The study of private law as a category is the study of these legal relations and these values, carried out alongside side (and in engagement with) the study of public legal relations among citizens and the value of justice, but not reduced to those things.  Again, private law stands (in this respect) in the same formal relation to public law as morals stand to politics.

Finally, the relations between public law and private law are not static, as the scope of each normative frame changes over time and in response to economic, social, and legal developments. Quite possibly, the state—and thus also the categories of public law, including justice—is at the moment losing practical capacity and thus also ideological luster.  Perhaps the rebirth of interest in private law (and the increased ideological variety among those who display the interest) reflects this historical trend.  In this case, the private law skepticism that is so prominent in US American legal thought of the moment might play a historical role that uncomfortably resembles the role once played by the private law fundamentalism from whose bad reputation these reflections set out. Like their earlier private law counterparts, today’s public law fundamentalists are holding prayerfully fast to a legal and ideological construction that the forces of history are leaving behind.