Private Law Theory

ABSTRACT
This paper was presented at a symposium celebrating the illustrious career of Professor Kenneth S Abraham, using as a marker the fortieth anniversary of the publication of his book, Distributing Risk: Insurance, Legal Theory, and Public Policy. The book was a landmark in the study of insurance and insurance law in the United States. Chapter 2 of Distributing Risk is ‘The Purposes and Structure of Insurance Law’. Abraham describes the three purposes of insurance law as economic efficiency, the fair distribution of risk, and promoting equitable relations between insurer and insured. The purposes can be applied to develop doctrines and decide cases using a method called ‘intuitive pragmatism’.

Within insurance law scholarship, this analysis has become the mainstream view today. In structure and style of analysis and argument, much of the contemporary work on insurance law resembles Abraham’s presentation. In substantial part, the familiarity of this analysis comes from its integration of insurance law scholarship within the mainstream of private law and legal reasoning. This paper briefly describes the development of those topics and the fit of insurance law within them.

In defining the values that underlie the purposes of insurance and the process of intuitive pragmatism, Abraham rejects the idea that a single theory can or should provide appropriate answers to insurance law questions. However, ‘regularities’ in the application of the purposes appear; the reasonable expectations principle is an example. This paper describes one other regularity: the tension between viewing insurance primarily as a contractual relation between a policyholder and an insurance company, and viewing it as an expression of community through collective risk-sharing.

Feinman, Jay M, The Purposes of Insurance Law Revisited (September 2, 2026).