Private Law Theory

Ernest J Weinrib, Reciprocal Freedom: Private Law and Public Right, Oxford, Oxford University Press, 2022, 240 pp, hb, £90.00. At the heart of Ernest Weinrib’s much-celebrated theory of private law lies an insistence on private law’s distinctiveness qua private, and the resultant impossibility of its satisfactory theoretical reduction to mere ‘public law in disguise’ (L Green, ‘Tort Law Public Law in Disguise’ (1959) 38 Texas Law Review 1). For Weinrib, this distinctiveness lies in the unifying correlative structure of the plaintiff-defendant relationship to which private law’s component procedures, doctrines, and discourse give expression: in private law, liability is a correlatively structured conclusion (D’s liability is to P), reached following a correlatively structured process (P took proceedings against D), with correlatively structured results (D’s owes a remedy to P), justified on the basis of correlatively structured reasoning …

€ (Wiley)

Daniel Gilligan, Ernest J Weinrib, Reciprocal Freedom: Private Law and Public Right, Modern Law Review, Volume 86, Issue 4, July 2023, pages 1063-1067. First published: 19 February 2023.