This Essay considers whether a pluralist account of private law can, notwithstanding its multiplicity, its dynamism, and its disavowal of neutrality, comply with the rule of law. My focus will thus be on two aspects of the rule of law: as a requirement that law be capable of guiding its subjects’ behavior, and as a prescription that law not confer on officials the right to exercise unconstrained power. At first glance, a pluralist and perfectionist understanding of private law is vulnerable on both the guidance and the constraint fronts, but this impression is fortunately incorrect. Private law pluralism neither requires nor should it imply adopting the dubious nominalistic approach of case by case adjudication, which indeed undermines guidance. Rather, properly understood, private law pluralism supports, even requires, relatively stable and internally coherent — albeit properly narrow — doctrinal categories. Each such private law institution is governed by fairly precise rules alongside informative standards founded on the regulative principles of these institutions, enabling people to predict the consequences of future contingencies and to plan and structure their lives accordingly. These private law institutions are shaped and developed through both legislation and adjudication. Courts are appropriately involved in many of these processes because at least insofar as private law is concerned they typically enjoy no less legitimacy, from either a participation or an accountability perspective, than legislatures. Likewise, while the plurality of values involved in the molding of our private law institutions’ regulative principles makes this a challenging endeavor, we have no grounds for assuming that the requirement of normative contextual inquiry typifying common law adjudication does not reliably constrain this judicial power.
Dagan, Hanoch, Private Law Pluralism and the Rule of Law (August 9, 2012).