Document Type

Article

Publication Date

2019

Abstract

While scholars routinely question the normative significance of the distinction between public law and private law, few – if any – question its conceptual basis. Put in simple terms, private law refers to bodies of legal doctrine that govern the horizontal interaction between actors, be they individuals, corporate entities, or on occasion the state acting in its private capacity. Public law on the other hand refers to doctrinal areas that deal with vertical interaction between the state and non-state actors, wherein the state exerts a direct and overbearing influence on the shape and course of the law. The latter is epitomized by the areas of constitutional law, administrative law, and criminal law, while the areas of contract law, tort law, property law, and the law of unjust enrichment exemplify the former.

Underlying this basic distinction is an important institutional dimension. Most areas that are treated as exemplifying private law are areas of the common law, meaning that they are judge made in origin. Common law rules continue to be policed and developed by courts incrementally, from within the context of individual disputes. Consequently, private law and the common law are routinely treated as synonymous and analytically coterminous with each other. While this characterization may have had few problems in simpler times, the emergence of the modern administrative state has served to render it grossly misleading in important respects.

Treating private law as subsumed entirely within the common law has produced a critical blindspot for private law thinking. It causes discussions of private law to overlook the role of the legislature in governing horizontal legal interactions. In numerous areas, statutory intervention has come to supplement and modify common law rules. Indeed, several domains of horizontal interaction between private actors are today governed entirely by statutory law. While this neglect is for the most part seen in all common law countries, in the context of the United States it has come to be further entrenched by an influential development in post-World War II legal thinking that has given it a superficial structural legitimacy. And this is the reality that under the influence of the Legal Process school of thought, the subjects of “legislation” and “statutory interpretation” have come to be understood and theorized as public law subjects. By prioritizing form over substance and thus focusing on the institutional origin of the law rather than on its substantive content, this public law approach to legislation dominates American legal thinking today. As such, it has served to turn private law’s legislative blindspot into a serious threat to the very analytical significance of private law thinking.

This Article is an attempt to describe the basis and consequences of the disconnect between private law and legislation, both for private law theorizing and legal thinking more generally. It does so by focusing on “private law statutes,” legislation (and legislative provisions) that creates or modifies rights and obligations between parties in their private capacities. Private law statutes do more than merely create private causes of action. While they create private causes, they do so on the basis of principles that are specific to the horizontal interaction between parties, rather than entirely for public-regarding policy reasons. While statutes in the areas traditionally identified as private law remain obvious examples, the category extends to altogether new domains as well.

Disciplines

Comparative and Foreign Law | Jurisprudence | Law | Law and Society | Litigation | Torts

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