Nicholas J McBride, The Humanity of Private Law – Part I: The Explanation
| DOI | 10.3366/elr.2019.0585 |
| Pages | 451-452 |
| Published date | 01 September 2019 |
| Author | |
| Date | 01 September 2019 |
In the past few decades, Anglophone jurisprudence has developed in the direction of what some call “special” jurisprudence, in which philosophical approaches, resources, and tools are brought to bear on traditional areas of substantive law, in particular, but not exclusively, criminal law, constitutional law, and private law. Private law theory, in particular, has been given enormous impulse by the clash between consequentialist-type theories, most notably Law and Economics approaches, and Kantian-type theories, such as the one developed by Weinrib and Ripstein, over the last three decades or so. That impulse moved both inwards, in the direction of progressively more complex and nuanced consequentialist and Kantian accounts of private law, and outwards with the appearance of alternative approaches stemming from dissatisfaction with the apparently exhaustive disjunction. The complaints raised by the latter have a similar form: the dominance of consequentialist and Kantian approaches excludes from the
McBride's new book is the first part of an attempt to put forward a conception of private law (ostensibly, only the private law of England and Wales) that does not appear to fit any of the available general models. He proposes an account of private law whose explanatory touchstone is the idea of human flourishing (hereinafter “HF”). The book is the first of a planned two-volume set. This first volume tries to argue that an HF-based account of private law offers a better explanation for some of the particular features of English private law and, to the extent that those features are also replicated in other legal systems (and many of them are), HF-based accounts would also have explanatory power in relation to these other legal systems.
Now, there are as many conceivable HF-based accounts of private law as there are conceivable conceptions of human flourishing. Of course, all HF-based accounts would share certain features (or else they would not make up a unified category) and, additionally, such shared features could not be shared (at least not
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