Legal Realism and The Taxonomy of Private Law

One feature of the renewed interest in private law is a willingness to study legal doctrine and to recognize the role of doctrine in judicial decision-making. In this respect, New Private Law stands in opposition to Legal Realism, which denies or at least minimizes the influence of doctrine on adjudication. New Private Law assumes that legal concepts, categories, and rules play a vital role in defining legal relations between parties interacting with one another. Yet even those who are open to the idea that doctrine plays a role in adjudication of private rights and duties tend to reject “formalistic” approaches to legal doctrine. The chapter offers a partial defense of serious, deductive formalism. From the point of view of a legal authority or an individual who imposes a rule on herself, deductive formalism is practically rational, even if it sometimes produces results that are wrong when judged by the purposes of the rule or the rule follower’s reasons for action. The chapter then discusses different approaches to problem of bad results in particular cases and suggests that the traditional method of equitable intervention has advantages over the Realist aversion to determinate rules.

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Legal Realism and the Taxonomy of Private Law

Reconstructing American Legal Realism & Rethinking Private Law Theory ◽

10.1093/acprof:oso/9780199890699.003.0006 ◽

2013 ◽

pp. 129-143

Author(s):

Hanoch Dagan

Keyword(s):

Private Law ◽

Legal Realism

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Form and Substance in the “Private Law” of Torts

Journal of Tort Law ◽

10.1515/jtl-2020-0012 ◽

2021 ◽

Vol 0 (0) ◽

Author(s):

Gregory C. Keating

Keyword(s):

Collective Responsibility ◽

Public Law ◽

Private Law ◽

Legal Form ◽

Theoretical Understanding ◽

Legal Realism ◽

The Law ◽

Influential Book ◽

Scholarly Discourse ◽

Private Wrongs

Abstract Instrumentalist ideas have long been prominent in torts scholarship. Since the rise of legal realism, discussions of deterrence, compensation, the minimization of accident costs, and the distribution of losses have dominated scholarly discourse. In the past several decades, however, wholesale rejections of instrumentalist tort theory have arisen. The most uncompromising of these views rallies around the avowedly formalist battle cry that tort is “private law”. Ernest Weinrib’s elegant and influential book, The Idea of Private Law, declares its allegiance to that thesis in its title, and the idea figures almost as centrally in Arthur Ripstein’s recent and important Private Wrongs. Theorists who rally around the banner of “private law” claim that tort law’s governing principles of right and responsibility tumble out of the field’s characteristic legal form. Law, as they understand it, is constitutive of just relations among persons, not an instrument for the pursuit of independently valuable ends. For scholars like Weinrib and Ripstein, “private law” is the Kantian idea of reason that makes our actual law of torts intelligible. The claim that torts is a law of wrongs where persons bring claims in their own names for harms that they have wrongly suffered against those allegedly responsible for those wrongful harms is powerful and persuasive. The claim that the obligations persons owe one another in tort are obligations owed among equal and independent persons is likewise compelling. But theorists of tort as “private law” overshoot the mark by both asking and making too much of form. They ask too much of form when they attempt to make sense of the private law of torts solely in terms of form—eschewing all talk of interests. We cannot understand or justify the law of torts without attending to the interests that it protects. In tort, as elsewhere, rights and the duties they ground protect important individual interests. For example, it is our interest in the physical integrity of our persons that grounds the law of negligence. Theorist of tort as “private law” make too much of form when they present the legal category as its own private fiefdom walled off from surrounding legal fields. For Ripstein and Weinrib, “private law” is its own autonomous domain, sealed off against infection by any legal field whose form identifies it as “public law”. In our law, the private law of torts cooperates and competes with public law institutions as a response to the pervasiveness of accidental harm in an industrial and technological society. It is one way of institutionalizing our interest in safety. Establishing rightful relations among free and equal persons in civil society requires that institutions protect persons’ urgent interests, not just establish their formal independence. The theoretical understanding that we need will recognize that we misunderstand even the private law of torts itself if we sever it entirely from forms of collective responsibility for avoiding and repairing accidental harm with which it competes and cooperates.

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