The Idea Of Private Law

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Overview

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.

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Editorial Reviews

Modern Law Review - Dennis Patterson
Ernest Weinrib's new book deserves our highest attention. No one who thinks seiously about the nature of private law can afford to ignore this work. In addition to providing a compelling account of the nature of private law, this book puts into serious question the leading contemporary accounts of the nature of law. In short, this is a book from which any student of law will learn much...No account of private law can be complete without addressing Weinrib's position.
Review of Metaphysics - C. B. Gray
The Idea of Private Law is Weinrib's first monograph presentation of his quarter century of writing in legal philosophy. This presents his version of legal formalism....Plausible reactivation of classical positions in philosophy and jurisprudence is enough to recommend the work, even had not its contemporaneity to concerns before our legislatures... and to colloquy with all other legal philosophy of note today...done so.
George P. Fletcher
Clearly and elegantly written. The debate that Weinrib engages is important and Weinrib's own position in the debate should be heard. He makes a significant contribution by arguing the importance of understanding tort law by reference to its own internal structure.
Gary T. Schwartz
The Idea of Private Law presents a position about tort law which in my view is essential, and develops that position in a way that is both powerful and eloquent. Weinrib stands out among those who have analyzed tort law from a justice perspective. This is a brave and distinguished book.
Modern Law Review

Ernest Weinrib's new book deserves our highest attention. No one who thinks seiously about the nature of private law can afford to ignore this work. In addition to providing a compelling account of the nature of private law, this book puts into serious question the leading contemporary accounts of the nature of law. In short, this is a book from which any student of law will learn much...No account of private law can be complete without addressing Weinrib's position.
— Dennis Patterson

Review of Metaphysics

The Idea of Private Law is Weinrib's first monograph presentation of his quarter century of writing in legal philosophy. This presents his version of legal formalism....Plausible reactivation of classical positions in philosophy and jurisprudence is enough to recommend the work, even had not its contemporaneity to concerns before our legislatures... and to colloquy with all other legal philosophy of note today...done so.
— C. B. Gray

Review of Metaphysics
The Idea of Private Law is Weinrib's first monograph presentation of his quarter century of writing in legal philosophy. This presents his version of legal formalism....Plausible reactivation of classical positions in philosophy and jurisprudence is enough to recommend the work, even had not its contemporaneity to concerns before our legislatures... and to colloquy with all other legal philosophy of note today...done so.
— C. B. Gray
Modern Law Review
Ernest Weinrib's new book deserves our highest attention. No one who thinks seiously about the nature of private law can afford to ignore this work. In addition to providing a compelling account of the nature of private law, this book puts into serious question the leading contemporary accounts of the nature of law. In short, this is a book from which any student of law will learn much...No account of private law can be complete without addressing Weinrib's position.
— Dennis Patterson
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Product Details

  • ISBN-13: 9780674442122
  • Publisher: Harvard University Press
  • Publication date: 2/1/1995
  • Edition description: New Edition
  • Pages: 250
  • Product dimensions: 0.63 (w) x 6.14 (h) x 9.21 (d)

Meet the Author

Ernest J. Weinrib is Professor of Law and Special Lecturer in Classics at the University of Toronto.
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Table of Contents

Acknowledgments

1. Understanding Private Law

2. Legal Formalism

3. Corrective Justice

4. Kantian Right

5. Correlativity

6. Negligence Liability

7. Strict Liability

8. The Autonomy of Private Law

Index

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