Friday, November 17, 2023
Paul B. Miller (Notre Dame Law School) published an essay in Understanding Private Law: Essays in Honour of Stephen A. Smith, Is Private Law Normatively Distinctive?, Hart Publishing, Forthcoming. Provided below is an introduction :
This chapter was prepared for a volume paying tribute to the life and work of the late Stephen A. Smith. It examines an essay by Smith – ‘The Normativity of Private Law’ – that elaborates his methodological convictions. In the essay, Smith argues that leading American scholarship – blinkered by legal nihilism, nominalism, and narrow behaviourism – fundamentally misunderstands private law by failing to consider that private law is what it appears to be: a normative system that presents itself as morally authoritative. In this chapter, I canvass Smith’s arguments and conclude that he is persuasive: one cannot understand private law without recognizing and engaging with its normativity. But I also explore what Smith’s essay has to teach about a persistent bugbear for private law theory: the question whether there is anything genuinely distinctive about what is conventionally denominated “private law.” I argue that one can find within Smith’s work resources for a productive reframing of the narrower question whether private law is normatively distinctive. The reframing allows for nuance missing in sweeping assertions of normative distinctiveness for private law found in older work of private law theory while, at the same time, making the question more tractable and interesting.