Private Law Theory

Introduction:
In their edifying and ambitious recent article Just Relationships, Professors Hanoch Dagan and Avihay Dorfman suggest that everyone before them has erred in their account of the distinction between public law and private law. Classic liberal scholars – a category meant to cover Thomas Hobbes and William Blackstone through the nineteenth century to Richard Epstein, Ernest Weinrib, and Arthur Ripstein  – endorse a prepolitical conception of rights and then treat private law as clarifying and concretizing that domain; clarity of enforceability of rights permits freedom and recognizes equality. Conversely, realists and instrumentalist scholars – typified by the law and economics school – do not really think there is a distinction between private law and public law; private law is just public law in disguise. The legal system creates legal entitlements and rules enforcing them in order to serve important public benefits in the long run … (more)

Benjamin C Zipursky, ‘The Cathedral Through The Looking Glass: A Commentary On Dagan And Dorfman’s Just Relationships’, Columbia Law Review Online volume 117 (June 6, 2017) 165–178.

First posted 2017-06-06 06:50:30