Private Law Theory

ABSTRACT
Private law theory is on the rise in the United States. A wave of theoreticians, myself included, have been developing ‘internal’, interpretive theoretical perspectives on various facets of private law under the banner of the New Private Law (NPL). There is, refreshingly, no orthodoxy in the NPL. But heterodoxy comes with a downside: the NPL is characterized by a conflux of methodologies the mutual compatibility of which have yet to be analyzed. For example, NPL theorists have yet to debate what it means to interpret private law from an internal point of view, and why it might be necessary or important to engage in interpretation in this way. In this chapter, I frame and instigate debate over these and similar issues. I do so by explaining the sense in which interpretive private law theory may be concerned with elucidation of the juridical justification of private rights, as reflected in juridical reasons for those rights. To some extent, this is a matter of elaborating and refining a methodology that informs my own work. But it also, I think, offers one way in which to focus and defend methodological proclivities that have come to characterize the New Private Law.

Miller, Paul B, Juridical Justification of Private Rights (February 8, 2020) in Michael Crawford, Simone Degeling, Jessica Hudson, and Nicolas Tiverios, eds, Justifying Private Rights (Hart Publishing, Forthcoming).

First posted 2020-03-04 08:11:10