Introduction: Pragmatism and Private Law
Like many legal concepts, “private law” has recognizable referents yet eludes precise definition. Private law defines the rights and duties of individuals and private entities as they relate to one another. It stands in contrast to public law, which establishes the powers and responsibilities of governments, defines the rights and duties of individuals in relation to governments, and governs relations between and among nations.
Private law includes the common law subjects that have long been central to U.S. legal education — contracts, property, and torts. But it is not limited to those subjects, nor to common law. Statutory fields such as intellectual property and commercial law fall within private law. So too do areas of law now mostly neglected in U.S. law schools, such as agency, unjust enrichment, and remedies.
At a broader level, the phrase “private law” gestures toward an elusive set of distinctions between what is public and what is private. Private law is law, so government is involved, albeit in a particular way. Typically, it makes available institutions and procedures that enable individuals and entities to define their relationships and to assert and demand the resolution of claims against others. Courts are central to this framework, but so too are arbitral panels. In turn, this institutional framework builds on and partly incorporates customs and social norms pertaining to interpersonal interaction.
Whereas scholars in commonwealth and civil law jurisdictions generally are comfortable with the category of private law, the disposition among U.S. legal academics is skeptical. The idea that “all law is public law” is no less taken for granted than the idea that “we are all realists now.” The simultaneous embrace of these two mantras is no coincidence. Legal realism is one important instantiation of a broader view of law that has contributed to the rise of private law skepticism.
In what follows I will first briefly discuss three canonical statements of this broader view, which I dub “brass-tacks pragmatism.” They are Justice Holmes’s The Path of the Law, Karl Llewellyn’s Some Realism About Realism, and Duncan Kennedy’s Form and Substance in Private Law Adjudication. I focus on these articles because (by academic standards) they are famous, because they appeared in the pages of this journal, and because they demonstrate that the view I am describing crosses methodological, political, and generational lines. After outlining the connection between brass-tacks pragmatism and private law skepticism, I will invoke a different variant of pragmatism — “inclusive pragmatism” — in support of the less skeptical “new” private law.