The Political Origins of English Private Law

Publication Date01 Nov 2013
DOIhttp://doi.org/10.1111/j.1467-6478.2013.00638.x
AuthorDan Priel
JOURNAL OF LAW AND SOCIETY
VOLUME 40, NUMBER 4, NOVEMBER 2013
ISSN: 0263-323X, pp. 481±508
The Political Origins of English Private Law
Dan Priel*
The article seeks to explain the emergence of the view that English law
contains a fundamental divide between public and private law. I
propose to explain the divide, not as a conceptual distinc tion,
grounded in the internal rationality of law, but as a response to the
potential problem of political legitimacy arising from the fact that in
the domain of private law courts are constantly engaged in making
substantive law. That by itself shows that the divide between public and
private law is politically motivated, but I further argue that the
prevailing view of law among proponents of the divide revives Dicey's
conception of the common law within the narrower domain of private
law. Since Dicey's views are widely believed to be motivated by his
political views, if I am right, this lends support to the conclusion that
the views of defenders of the divide are grounded in similar political
positions.
I.
These days one often sees the divide between private and public law
presented as a fundamental distinction of English law. This is an interesting
development because it reflects a complete turnaround from what until
recently was considered one of English law's defining characteristics,
namely, the lack of any clear distinction between the two. Furthermore, to
the extent that people have drawn the distinction between private and public
law in the past, it was typically in an attempt to point to the newly emerging
public law and distinguish it from the rest of the (private) law. Today, by
contrast, it is more common to see the argument pushed in the opposite
481
*Osgoode Hall Law School, York University, 4700 Keele Street, Toronto
ON, M3J 1P3, Canada.
dpriel@osgoode.yorku.ca
I thank participants at a faculty workshop at Osgoode Hall Law School, as well as David
Howarth and six referees for the Journal of Law and Society for their comments and
suggestions.
ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School
direction, in an attempt to separate private law from the rest of the (public)
law. The aim of this article is to explain this development as a response to
concerns about the political legi timacy of courts entrusted with t he
development of private law.
Historically, English law did not recognize a clear division between
private and public law.
1
By Dicey's time, this was not merely a recognized
feature of the law, but a matter of national identity: `when we speak of ``the
rule of law'' as a characteristic of our country', he wrote, `[w]e mean .. . that
here every man, whatever be his rank or condition, is subject to the ordinary
law of the realm and amenable to the jurisdiction of the ordinary tribunals'.
2
Dicey further explained that England did not have anything `of the nature
and principles of what is called in France droit administratif'.
3
These claims
have come under attack over the years, but they have had considerable
staying power. For instance, in 1965 John Mitchell wrote an article that
described and criticized (as its title had it) `the causes and effects of the
absence of a system of public law in the United Kingdom'.
4
As late as 1983
Lord Wilberforce could express some reticence about `import[ations] into
the law of England from countries which, unlike our own, have separate
systems concerning public law and private law.'
5
Despite this history, a group of scholars, whom I will collectively
designate `the Private Lawyers', has sought to tell us that the distinction
between public and private law is one of English law's foundational divides.
6
For them, insisting on this distinction marked the maturing of the English
legal system from its messy past into its more rationally ordered present.
Peter Birks, the intellectual leader of the Private Lawyers, believed that `[n]o
department of human knowledge ever advanced without attenti on to
taxonomy',
7
and dedicated boundless energy to identifying the `correct'
one. The most fundamental, axiomatic, distinction in his classificatory
scheme was between public and private law. As he put it, `[t]he whole law is
482
1 See J.W.F. Allison, A Continental Distinction in the Common Law: A Historical and
Comparative Perspective on English Common Law (1996) 7±8. Allison further
contends that the `categorical' approach that the division between public and private
law is only part of, is alien to the common law (pp. 122±4). Here too, we see an
interesting development as the categorical or taxonomical approach has been at the
heart of the emerging private law (see n. 9 below).
2 A.V. Dicey, Lectures Introductory to the Study of the Constitution (1885) 177±8.
3 id., p. 179.
4 J.D.B. Mitchell, `The Causes and Effects of the Absence of a System of Public Law
in the United Kingdom' [1965] Public Law 95.
5Davy v. Spelthorne Borough Council [1984] A.C. 262, 276 (Lord Wilberforce,
dissenting).
6 Grouping these different scholars together should not be taken to mean that there are
no important differences among them. (I discuss some of these differences in
sections IV and V below.) Despite these differences, they share a commitment to the
conceptual distinction between public and private law.
7
P. Birks, `Rights, Wrongs, and Remedies' (2000) 20 Oxford J. of Legal Studies 1, at 37.
ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School

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