Private Law Theory

I have long believed that Roman law texts supply sophisticated philosophical observations that have anticipated much of what has gone wrong in modern law. The quotation above from Gaius’s Institutes, on its face, concerns the question of how to define a particular kind of theft – what we would roughly call theft by those caught red-handed. It notes that in a case of this sort, as well as in those dealing with adultery and homicide, the correct definitions of crimes are fixed as a matter of linguistic truth and cannot be altered by judicial fiats to the contrary. As Gaius says, it is always possible to treat some other form of conduct as if it were a form of adultery, theft, homicide, or, I shall add, nuisance, even if it is not. But that supposed equivalence comes at a price, for the key question is whether, under sound principles of deterrence or compensation, the severity of these newfound offenses independently justifies the same (severe) penalties applicable to traditional public nuisance cases …

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Richard A Epstein, ‘The Private Law Connections to Public Nuisance Law: Some Realism about Today’s Intellectual Nominalism’, (2022) 17(2) Journal of Law, Economics & Policy 282-313.