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?

Increasing technicality

Lack of overall vision – no ‘big ideas’

Overshadowed by public law

Hard to explain simply what it is for

Contract Law

‘Based on agreement’?• ... but people can ‘agree’ to things they are

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

‘Based on wrongs’ ?• ... in a rather random way

• ... except when it isn’t (strict liability)

• ... or except when the wrong attracts vicarious liability

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?

Contract as promise• Acceptance around 1880

Tort as fault• Generally accepted by 1930

Restitution as unjust enrichment • Prominent since the 1990s, though still

disputed

1930-1980 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

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’

(2) ‘Looking inwards’

(3) ‘Looking outwards’

1. Muddling through

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

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

Birksian taxonomists • Burrows, English Private Law (2nd ed 2008)

Corrective justice• Weinrib, The idea of private law (1995)

Increasing influence of these concepts• 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) Role of individuals (not the state) Legal principle (not policy) Case law (not statute) Morality (not economics or regulatory

theory)

3. Looking outwards

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

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

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

‘Search for coherence’ vs. ‘Productive disintegration’

This is, I suggest, should be seen as a balance

... notwithstanding those who want a war-to-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

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

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?

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