John Gardner, ‘Dagan and Dorfman on the Value of Private Law’

“Hanoch Dagan and Avihay Dorfman believe that theoretical work on private law has become too polarized. Ranged on one side, there are those who ‘conceptualize private law as a set of regulatory strategies with no … unique moral significance’. On the other side are those who associate private law with ‘values that dissociate it entirely from politics (broadly defined)’, values that Dagan and Dorfman label ‘formal’. Dagan and Dorfman point out, masters of understatement that they are, that this is ‘a misleading dichotomy’. There is plenty of habitable space between the two poles. In Just Relationships, they locate, and recommend, one possible intermediate position. With the ‘formal’ (‘traditional’) types they share the conviction that private law has some unique moral significance. With the ‘regulatory’ (‘critical’) types they share the view that private-law values cannot be dissociated entirely from politics …” (more)

Columbia Law Review Online, volume 117 pp 179-201 (September 2017).

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