A word of clarification at the outset about this term “private law,” which may be unfamiliar to some readers. Law students discover early in their legal education that their basic courses can be divided into “public” and “private” law. There is a longstanding historical and conceptual tradition that denotes some topics as “private law”—namely property, contracts, business associations, and torts. Several of the chapters in this book address how those fields developed. A separate volume in this series addresses business associations, another topic often designated as private law.
One way of approaching what constitutes private law and how it is distinct from public law is found at the outset of an influential account of the sociology of law, Max Weber’s Economy and Society. Weber writes that “[o]ne of the most important distinctions in modern legal theory and practice is that between ‘public’ and ‘private’ law,” though the distinction is sometimes difficult to draw. Broadly speaking, public law directly involves the state—as Weber puts it, “the total body of those norms which regulate state-oriented action, that is, those activities which serve the maintenance, development, and the direct pursuit of the objectives, of the state.”1 In the usual American law school curriculum, criminal law and constitutional law, then, are “public law” courses, as are such areas as tax law and administrative law. By contrast, private law is, as Weber puts it, “the totality of those norms which, while issuing from the state, regulate conduct other than state-oriented conduct”; private law regulates the interests of individual parties.
Another difference between public law and much of private law is that whereas public law is created by the state—constitutional law, legislative enactments, and administrative regulation—much of private law is created by individuals. Individuals draft contracts, buy and sell property, and create and operate businesses. As to all of these areas of private law, the state creates the framework, but individuals organize and create many of the specific obligations under which individuals will govern themselves.
A third way of approaching the distinction between public and private law is the way private parties confront each other (in, say, a property or torts dispute) as opposed to the government initiating a legal action against private person (as Weber terms it, the difference between the law of coordination and the law of subordination). On this view, private law is “concerned with those legal affairs in which several parties are confronting each other so that the law treats them as being coordinated and that their legal spheres are to be ‘properly’ defined against each other….” In public law (a criminal prosecution, for example), “a holder of preeminent power, having authoritative power of command, is confronting those persons who are his subjects by virtue of the legal meaning of the norms.”2
An important insight shared by many of the contributors to this volume is that private law is not public law by another name—there is an integrity to private law that is not reducible to merely functional or instrumental concerns. As summarized by Ernest Weinrib in his The Idea of Private Law (a work that played a significant role in rejuvenating interest in private law theory), functionalist accounts of law assume “that no distinction exists between private and public law.” On this view, because private law is always in the pursuit of public objectives, “private law is public law in disguise.”3 A widely influential such functionalist view would be law and economics, or at least some forms of economic analysis of law. For law and economics, legal rules (as a descriptive or normative matter) are shaped by economic efficiency or some other policy objective or function—thus Weinrib’s charge of functionalism. A recurring question raised by the chapters in this volume is whether Christianity is committed to non-instrumentalist and more formalist (in Weinrib’s sense) views of private law, and, if so, how such non-instrumentalist views might be vindicated. But there is also a recurring theme in this volume that private law is not simply empty formalism. As pointed out by Brian Leiter, “vulgar formalism” holds that “judicial decision-making involves nothing more than mechanical deduction on the model of the syllogism.”4 Still, there is an inner logic to the law, and we might think that private law partakes of what Weinrib terms “immanent moral rationality”—there is a “normative force” to private law.5