Normative dimensions of the practice of private law

This thesis is an examination of and critical reflection on theoretical approaches in private law theory. First, because private law is a subset of the general category of law, I consider how debates in general jurisprudence around explanatory, descriptive and normative theories about the law can shed light on similar projects in private law. This includes a critical analysis of ‘interpretive’ theories which purport to explain and justify at the same time. Second, because normative theorizing around private law touches on questions of justice and rights, I consider how recent debates in political philosophy may have a bearing on private law. In this respect I highlight the distinction drawn between ‘moralist’ and ‘realist’ approaches to normative political philosophy. I argue that the existing private law theory literature takes a moralistic approach and show what political realism would have to say about private law theory. On a realist view, political philosophy must take moral disagreement as a starting point, and rather than trying to resolve it, it must proceed with this disagreement in mind. Political realism reframes our question from the moralist one of “What rights and obligations structure the legal relationship between private persons?” to the realist one of “How do we act together in the face of disagreement over the question of what rights and obligations structure the legal relationship between private persons?” This focuses our normative inquiry on institutions designed to allow us to coexist in the face of disagreements over private rights and obligations. Further, it shifts our analysis from questions of justice (about which there is irresolvable disagreement) to questions of legitimacy.