Private Law Theory

ABSTRACT
This chapter begins with an explanation of why, in the United States, philosophical analysis has become a prominent feature of private law scholarship. Historical, sociological, and constitutional peculiarities of the American experience all figure in our account. It then distinguishes two ways in which philosophy has been brought to bear on private law. The first involves the use of analytical and moral philosophy to critique and develop alternatives to policy-driven, welfarist approaches that tend to dominate elite US legal-academic writing. The second harnesses philosophical analysis to defend the intelligibility of ordinary lawyerly discourse about private law as against reductionists (whether deontological and welfarist) who treat legal concepts as empty vessels to be filled with extra-legal content. Our aim is to help scholars understand the current state of private law scholarship in the U.S. and appreciate the role that philosophy can play in the explanatory, justificatory, and critical aspects of the legal academic enterprise.

Zipursky, Benjamin C and Goldberg, John CP, The Place of Philosophy in Private Law Scholarship (October 3, 2023) in Methodology in Private Law Theory: Between New Private Law and Rechtsdogmatik (Thilo Kuntz and Paul B Miller eds, Oxford University Press Forthcoming); Fordham Law Legal Studies Research Paper No 4591115.