The Idea of Private Law

by Ernest J. Weinrib

Private law is a familiar and pervasive phenomenon. It applies our deepest intuitions about personal responsibility and justice to the property we own and use, to the injuries we inflict or avoid, and to the contracts which we make or break. The Idea of Private Law offers a new way of understanding this phenomenon. Rejecting the functionalism popular among legal scholars, Ernest Weinrib advances the provocative idea that private law is an autonomous and noninstrumental moral practice, with its own structure and rationality. Weinrib draws on Kant and Aristotle to set out a formalist approach to private law that repudiates the identification of law with politics or economics. Weinrib argues that private law is to be understood not as a mechanism for promoting efficiency but as a juridical enterprise in which coherent public reason elaborates the norms implicit in the parties' interaction. The book combines philosophical exposition and legal analysis, and pays special attention to issues of tort law. Private law, Weinrib tells us, embodies a special morality that links the doer and the sufferer of harm. Weinrib elucidates the standpoint internal to this morality, in opposition to functionalists, who view private law as an instrument in the service of external and independently justifiable goals. After establishing the inadequacy of functionalist approaches, Weinrib traces the implications of the formalism he proposes for our ideas of the structure, coherence, and normative grounding of private law. Furthermore, the author shows how this formalism manifests itself in the leading doctrines of private law liability. Finally, he describes the public but nonpolitical role of the courts in articulating the special morality of private law.

Genres: Law

258 pages, Hardcover

First published February 1, 1995

About the author

Ernest J. Weinrib, B.A. (Toronto) 1965, Ph.D. (Classics) (Harvard) 1968, LL.B. (Toronto) 1972, is Cecil A. Wright Professor of Law. Professor Weinrib was appointed Assistant Professor of Classics at the University of Toronto in 1968 and Assistant Professor of Law in 1972. He was promoted to Associate Professor of Law in 1975 and Professor of Law in 1981. In 1979 he was Visiting Professor of Law, University of Tel Aviv and in 1984 Visiting Professor of Law, Yale Law School. From 1986 to 1988 he held a Killam Research Fellowship. He was awarded a University of Toronto Connaught Senior Fellowship for 1990-91. He is a Fellow of the Royal Society of Canada. He has served as Book Review Editor of the University of Toronto Law Journal, on the editorial committee of Ratio Juris and of the Law and Philosophy Library, and on the advisory board of the Israel Law Review. Professor Weinrib's scholarship and teaching have concentrated on Tort Law and Legal Theory. His publications include many books, articles and papers in these fields, published in Canada and abroad. He has given the Murray Lecture at the Iowa College of Law, the Monsanto Lectures on Tort Law at Valparaiso University School of Law, the Rosenthal Lectures at Northwestern University School of Law and the Brainerd Currie Memorial Lecture at the Duke University School of Law. His work has been the subject of symposia in the Iowa Law Review and in The Harvard Journal of Law and Public Policy. His major book is The Idea of Private Law, published by Harvard University Press in 1995. He was appointed University Professor in 1999, and in the following year he was named the Cecil A. Wright Professor of Law.

Reviews

[Craig Anderson · Rating 5 out of 5]

At the risk of over-simplifying this book, Weinrib's argument is essentially this: private law is about relationships between parties. Accordingly, any theory of private law that aspires to coherence should have no truck with anything external to those relationships. Such prominent approaches as the law-and-economics school, for example, are out. The argument is complex and many will find it hard-going at times. I admit that, when I first read it as an undergraduate, much of it went over my head. It is, though, worth persevering, because this is an important and sometimes neglected perspective.

[Matt · Rating 4 out of 5]

Inside a box lies a duckrabbit of epic proportions, neither larger nor smaller than the very legal system that we inherited from the English common law tradition. Weinrib opens the box, gazes inside, and...gasp...sees a duck. This book brilliantly explains that it's a duck without admitting that it also, when you tilt your head, looks an awful lot like a rabbit.