‘Private and Public Law Fundamentalisms’

“… Private law, at least as a category, has acquired a bad reputation in US American legal thought. The category private law is thus associated with a kind of fundamentalism, which insists that certain doctrinal constructions — most notably, contract, property, and tort, but also any number of others as whim or ideology have from time to time recommended — possess a historical or even logical necessity, rather than being influenced and even produced by contingent forces and moral or political choices. The category is also associated with the roughly neo-liberal position that the public institutions of the state ought not to interfere with private law rights, even in the name of justice. In its worst — but far from uncommon — construction, this private law fundamentalism is employed as part of an argument (usually conclusory) that the necessity of the doctrinal constructions warrants or even entails the neo-liberal ought …” (more)

[Daniel Markovitz, New Private Law, 22 September]

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