Private Law Theory

ABSTRACT
The purpose of this chapter is to evaluate the division of labour between democratic and professional procedures for generating private law. By ‘professional procedures,’ I mean both adjudication and legislative processes controlled by members of the legal profession. By ‘democratic procedure,’ I mean legislation in which democratic processes of elections, representation, deliberation, and voting meaningfully shape the content of the law. The chapter is written as a long answer to recent calls for the democratisation of private law. After generally tracing the structure of the division of labour characteristic of the making of private law in common law jurisdictions, I ask what principles of political morality and constitutional thought best explain it. I then use this explanation to identify a role for democracy in the making of modern private law.

Rosen, Arie, The Role of Democracy in Private Law (June 25, 2021). 2 Oxford Studies in Private Law Theory.

First posted 2022-03-29 14:45:17