Thursday, May 7, 2015

"Private Law" is an Oxymoron

John Goldberg and Henry Smith at Harvard have geared up a new blog dedicated to private law, in the process generating questions from Matt Bodie and Steve Bainbridge, among others, about the definition of private law.

UnknownI need to be careful here because I am close to invoking the W word (Austin Sarat told me once it was a Woody Allen like moment when I just happened to pull "Philosophical Investigations" out of my briefcase at a conference, so I'm going simply to post a picture.)

First, I'm a definition skeptic. Creating definitional baskets and stuffing things in them is a professional and parlor game for lawyers (e.g., is something a sport or a game?).  The question is whether the language in which definitions are cast sufficiently cuts reality at the joints to be helpful in any situation where we really don't have to decide if it's in or out.  The law, of course, is full of in-or-out situations.  Is it a security or isn't it?  Is she a resident of Massachusetts or isn't she? But is it helpful here other than a heuristic (and probably a useful one) for the stuff that interests the bloggers?  What counts as private law more likely bears significant family resemblances to public law than is something capable of crisp distinction.

Second, and more significantly, I think "private law" is an oxymoron when you actually parse it, as opposed to using it as a quick-and-dirty category. The guy I pictured above is famous for, among other things, observing that there are no private languages.  What that means is that for us to communicate at all, we are incorporating an objective world into our own subjective thoughts.  In the area of "private law" I think about the most, it's a lawyer's conceit to believe that the contract IS the deal, except in the simplest of circumstances.  As I've written in the past, the essence of turning an inter-personal relationship into a contract is to objectify it; once you've done that, and turned either to a community standard or a third party to interpret your agreement, it isn't private anymore.

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