Twentieth Century legal theorists – especially the American legal realists – provided vigorous critiques of the putative distinction between private law and public law, persuading jurists that the distinction relied upon legal formalism. In the latter third of the Twentieth Century, the law and economics school constituted a focused and dominant version of the legal realist capture of private law theory. By the 1990s, however, new forms of private law research developed, many of which we characterize as instances of ‘neo-realism’. And philosophical theorists brought private law theory full circle, re-embracing the distinction between private law and public law. These views are depicted here as forms of ‘neo-conceptualism’, and they are in many ways the polar opposite of neo-Realism. In this Chapter, Dagan and Zipursky each defends a view of the private/public distinction that falls in between the neo-realists and the neo-conceptualists. Dagan’s relational justice theory is a form of neo-realism highly receptive to the deontological concerns of the neo-conceptualists. Zipursky’s pragmatic conceptualism is a form of neo-conceptualism sensitive to the pragmatic and modernist concerns of legal realism.
Dagan, Hanoch and Zipursky, Benjamin C, The Distinction Between Private Law and Public Law (July 2, 2020) in Research Handbook on Private Law Theories (Hanoch Dagan and Benjamin Zipursky eds, forthcoming 2021).