Is There Such A Thing As Private Law?

Campbell, David (2025) Is There Such A Thing As Private Law? Lloyd's Maritime and Commercial Law Quarterly, 2025 (4). pp. 714-741. ISSN 0306-2945

Text (Is_There_Such_a_Thing_as_Private_Law)
Is_There_Such_a_Thing_as_Private_Law.pdf - Accepted Version
Available under License Creative Commons Attribution.
Download (339kB)

Abstract

In Justice in Private Law, Professor Jaffey seeks to give a comprehensive and unified “interpretively” adequate account of the “traditional private law”, the main areas of which are property, contract, and tort. Jaffey argues that both “corrective justice” and “distributive justice” theories of private law are seriously inadequate, and puts forward a “reconciliation” of them. Jaffey’s new theory gives supremacy to distributive justice, but seeks to avoid annihilating corrective justice through the concept of the “standpoint limitation”. Whereas legislation can reset rights on the basis of a wide knowledge of distributive concerns, adjudication should give effect to what the individual parties to disputes could reasonably know and expect on the basis of existing rights, though when adjudication itself requires the development of the law, this should be informed by distributive principle. This theory of the private law fundamentally based on the collective judgements of distributive justice cannot sustain the inviolability of the private which is necessary for the economic and legal freedoms of the market economy, and Jaffey’s concept of traditional private law embraces a very great deal of state intervention.