“In the common law world, the theory of private law has received a great deal of academic attention over the last four decades. The range of writings is diverse enough, but three general approaches dominate the field: that private law is a matter of corrective justice; that it is to be understood through the lens of economics; and that it is explained not through how its concepts have been used but through what they inherently are – that is, through formalism as opposed to instrumentalism. These three approaches are usually seen as rivalling one another. And in important senses this is indeed so. What I want to suggest is that they nonetheless share a core sentiment – roughly, that of distrust of collective action or purpose – which is quite alien to much of the writing which preceded them. This is a striking methodological commitment in the context of modern societies, which implicitly rely on collective arrangements, as well as trust in individuals not to abuse them. The rise of such theories of private law, and the initially feeble and scattered nature of the opposition to it, is what this essay addresses …”
Steve Hedley, ‘The rise and fall of private law theory’, 134 Law Quarterly Review 214 (April 2018).