Nicholas J McBride, The Humanity of Private Law – Part I: The Explanation

Author
DOI10.3366/elr.2019.0585
Published date01 September 2019
Date01 September 2019
Pages451-452

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 explanandum of a theory about private law one or more of its central features: for some they offer no credible account of private law's positivity; for others, they fail to...

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