Does private law have a future?
or ‘Oh, the vision thing’
Steve Hedley, UCC
SLS Seminar, Dublin
16 February 2008
Private law – lost in the
labyrinth?
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Increasing technicality
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Lack of overall vision – no ‘big ideas’
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Overshadowed by public law
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Hard to explain simply what it is for
Contract Law
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‘Based on agreement’?
• ... but people can ‘agree’ to things they are
•
•
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unaware of (!)
... and terms are often drafted centrally and
then imposed on individuals
... or even imposed by statute
The fully-negotiated contract is
discussed as the core case, when
everyone knows it is actually rather
unusual
Tort
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‘Based on wrongs’ ?
• ... in a rather random way
• ... except when it isn’t (strict liability)
• ... or except when the wrong attracts vicarious
liability
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The typical tort action is (in reality)
against an insurer or a public authority –
very distant from the interpersonal
dealings the textbooks presuppose
Where have we come from?
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Contract as promise
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Tort as fault
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Restitution as unjust enrichment
• Acceptance around 1880
• Generally accepted by 1930
• Prominent since the 1990s, though still
disputed
1930-1980
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Increasing bureaucratisation and state
regulation
Growth of legal aid and liability insurance
Separation of legal thought from public
policy
Genteel decline of traditional legal
approach
Slow absorption of contract and tort into
regulatory law (or so it seemed at the time)
1980-present
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Neo-liberalism in government
Revival of faith in market processes ...
... but also a belief that markets and
property rights are designed, not natural
The precise application of contract and
tort is continually fine-tuned by statute
… while leaving the traditional theory in
place for form’s sake
So what ‘big picture’ can be
drawn today?
Possible futures for private law:
(1) ‘Muddling through’
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(2) ‘Looking inwards’
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(3) ‘Looking outwards’
1. Muddling through
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Individually interesting issues, but no
overall pattern
But why would such a field attract
interest?
Why, indeed, would it matter?
A real problem in motivating scholars in
this area
2. Looking inwards
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Re-stating private law in a coherent and
structured way
Most approaches emphasise
interpersonal morality
Descriptions of the law are thought to
stand or fall on their internal coherence
Private law is a matter of justice between
individuals, not of public policy
Leading proponents
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Birksian taxonomists
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Corrective justice

Increasing influence of these concepts
• Burrows, English Private Law (2nd ed 2008)
• Weinrib, The idea of private law (1995)
• Lucy, The philosophy of private law (2006);
Smith, Contract Theory (2004); Beever,
Rediscovering the Law of Negligence (2007)
Focus of attention

Internationalism (not national systems)
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Role of individuals (not the state)
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Legal principle (not policy)
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Case law (not statute)
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Morality (not economics or regulatory
theory)
3. Looking outwards
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Asking what private law is for
Most approaches emphasise the
objectives pursued by the state
Accounts of the law stand or fall on how
well they serve society
Private law is a matter of public policy justice between individuals is simply one
of its goals
Judging law by external goals

Assessing law in the light of public
purposes
• e.g. viewing private law with economists’ eyes
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The point is not, however, that private
law is vulnerable to external criticism
… but rather that ‘external’ criticism is
increasingly part of the system, a part of
what lawyers themselves argue about
Focus of attention

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Actual workings of national systems
Role of the state
Legal policy
Role of statute and regulations
Economics and regulatory theory
Looking inwards vs. Looking
outwards

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‘Search for coherence’ vs. ‘Productive
disintegration’
This is, I suggest, should be seen as a
balance
... notwithstanding those who want a warto-the-death between these viewpoints
Much private law is very bad regulation, as
those who look inwards often point out
• But which way does that cut?
The limits of the ‘inwards’
approach
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Always looking to the past and ignoring
present needs
What legislators and judges do will
always seem incomprehensible from this
angle
The (unreasonable) demand that we
justify the way our legal systems have
(by chance) turned out
The limits of the ‘outwards’
approach
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Not everything in law has a rational
purpose
Much of the detail is arbitrary – the need
is for a system – often, the precise rules
don’t matter
Sometimes the ‘inwards’ approach
actually serves public policy
• See e.g. arguments over ‘neoformalism’ in
contract
A way forward?
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Ultimately, what private law needs is a
new conception of the state
Role of the state in defining private rights
(not insignificant but not absolute either)
Need to find connections between
private rights and how public law sees
them