Andrew Gold, ‘Internal and External Perspectives: On Methodology in the New Private Law’

New Private Law scholarship is concerned with the internal point of view. Yet, that feature does not distinguish it from much earlier work in private law theory. This chapter suggests an additional distinguishing factor: the New Private Law movement tends to combine an interest in the internal point of view with insights from external perspectives and associated methodologies. A leading example is Inclusive Functionalism, which seeks to show how taking private law concepts seriously on their own terms can shed light on private law’s functional benefits. Internalists may likewise draw on external perspectives, including in their development of interpretive criteria. Finally, New Private Law theory also includes hybrid accounts that are neither fully internalist nor externalist. Illustrations are given for each category. As will be developed, each of these possibilities gives New Private Law theory a distinctive approach to understanding private law.

Gold, Andrew S, Internal and External Perspectives: On Methodology in the New Private Law (April 28, 2019). Forthcoming, The Oxford Handbook of New Private Law (Andrew S Gold, John CP Goldberg, Daniel B Kelly, Emily L Sherwin, and Henry E Smith, eds) (Oxford University Press).

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