Private Law Theory

ABSTRACT
This paper provides a general account of particular or special jurisprudence. i.e. the part of jurisprudence that deals with theorising discrete ‘areas of law’. Section 2 will start with a few comments on theorisation itself. We will claim that a theory is a coherent set of true, general, and salient propositions about the phenomenon under study. We will also claim that the main purpose of theorisation is understanding the phenomenon. Finally, we will outline three types of theoretical questions that are of relevance to us: conceptual, empirical, and normative. Section 3 will claim that ‘an area of law’ is an intersubjective social artefact that exists only because legal practitioners and academics recognise it as such. We further claim that once an area of law is so recognised, it starts experiencing pressures to make it coherent in three distinct, but interrelated, ways. These are coherence-as-non-contradiction, coherence-as-consistency, and normative coherence. Over time, these coherence-seeking forces are likely to lend the area of law a distinct identity. Section 4 deals with the three different approaches to particular jurisprudence. It taxonomises the field based on whether the theoretical enterprise is conceptual, empirical, or normative. Conceptual theories aim to explain the nature of an area of law. They are usually concerned with its identity and its essential or defining features. Empirical theories are concerned with the actual functioning of legal actors and institutions. They tend to go beyond an exclusive focus on legal doctrine. Normative theories, we argue, may be detached or committed, ideal or non-ideal, universal or local, or interpretive. Conceptual and normative theories usually deploy philosophical tools; empirical theories use social science methods. Section 5 deals with two distinct methodological problems in particular jurisprudence. The first of these is the ‘problem’ of transparency – to what extent, if any, should a theoretical explanation of an area of law itself be accepted by legal practitioners in that area of law? We argue that such recognition is not a success condition for a theory. The second problem is the problem of fit. Underfit occurs when the theoretical claim is insufficiently supported by the facts that inform the theoretical enterprise. Overfit is a problem when theoretical claims fail to sufficiently explain the available facts about legal practice (even after making allowances for the complexity, contingency, and multiplicity of factors that bring about such facts), and this failure cannot be explained by practical mistakes. Section 6 concludes.

Khaitan, Tarunabh and Steel, Sandy, Theorising Areas of Law (October 4, 2019).

First posted 2019-10-17 06:00:20