Private Law Theory

ABSTRACT
Sustainability presents the most pressing need for our world today. Private law plays a prominent role for that need. Yet when responses are considered for private law, they tend to be small – a right to repair, for example, or extended warranty periods, or new internationally mandatory rules in private international law – and thus disproportionate to the sizable challenges we face. We private lawyers hope to be able to outsource most of our concerns about sustainability to public law. I argue here that we have to do more of the work ourselves.

In a nutshell, this article addresses makes three arguments. First, sustainability presents a considerable challenge to private law because modern private law as it exists today is structurally incapable of responding to the demand for sustainability. The reason is not only that modern private law is focused on individuals, whereas sustainability concerns common, even planetary problems. The main reason is that private law, as it exists today, is aimed at growth based on destruction and extraction, and this is in direct conflict with sustainability.

A typical legal response to shortcomings in private law lies in public regulation. This response presumes that sustainability is a social, or public, concern. My second argument, in response, is that this presumption is questionable with regard to the three most important recipients of such externalities: the Global South, nature, and future generation. Moreover, planetary boundaries set absolute limits on externalizing altogether.

If private law is a problem and public law is not a solution, we must rethink private law to make it sustainable. And because, as I argue, the problems of private law are structural, making it sustainable requires nothing less than paradigmatic change. That is my third argument. Such paradigmatic change cannot be brought about through tinkering and bricolage. It requires nothing less than a rethinking of the very foundations of private law. This article can offer no more than some suggestions for a pathway towards such rethinking.

Michaels, Ralf, Towards Sustainable Private Law Theory (February 21, 2024), Oxford Studies in Private Law Theory: Volume III, Paul B Miller and John Oberdiek, eds, Oxford University Press, Forthcoming.