Private Law Theory

ABSTRACT
Theorists and public law jurists frequently separate public and private law and ascribe to each area a unique form of reasoning. Public lawyers tend to consider the law to be the deployment of public law values – broad principles that can be found in constitutions, both written and unwritten. Private lawyers tend to view principles as emerging organically as a result of the evolutionary development of the law. But this division is artificial, as the Chief Justice’s criminal law judgments in the 1990s demonstrate. In the cases from this period examined in this chapter, we will see that a common law method for interpreting and reasoning about the law can be deployed in both private and public law cases, making it a legal method that unifies what are often erroneously considered separate fields.

Mayeda, Graham, The Continuity of Private and Public Law Reasoning in Chief Justice McLachlin’s Criminal Law Judgments (May 1, 2022). Published in Vanessa Gruben, Graham Mayeda and Owen Rees (eds), Controversies in the Common Law: Tracing the Contributions of Chief Justice Beverley McLachlin (Toronto: University of Toronto Press, 2022), 169-208.