Private Law Theory

ABSTRACT
The UK Supreme Court’s decision in Fearn v Board of Trustees of the Tate Gallery helps us to see that private law is better understood in terms of conceptual, rather than contextual, categories. This is because the Court made a mistake in Fearn by thinking of the tort of private nuisance as operating within a particular context (between neighbours) instead of as organised around a particular concept (responsibility for an unjustified interference with the claimant’s use of land) and that this mistake (which numerous academics have also committed) creates serious interpretative difficulties for understanding how the law on private nuisance will apply in the future, at least in England and Wales. These difficulties illustrate why private lawyers must always be on guard against three temptations in particular that encourage them to think of private law in contextual, rather than conceptual, terms. These three temptations are rooted in (a) difficulties in helping others understand private law (the ‘pedagogical temptation’); (b) eagerness to show the relevance of private law to other disciplines or fields of thought (or vice versa) (the ‘relevance temptation’); (c) the attempt to understand private law as maintaining relationships of equal freedom between people (the ‘Kantian temptation’).

Nicholas J McBride, Contextual Categories in Private Nuisance and Private Law, 5 Journal of Commonwealth Law 133 (2025).