The challenges of private law: A research agenda for an autonomy-based private law

• Jurisdiction: South Africa
• Published date: 24 December 2019
• Pages: 3-34
• Date: 24 December 2019
• Author: None
• Citation: 2019 Acta Juridica 3

3

The challenges of private law:

A research agenda for an autonomy-

based private law*

HANOCH DAGAN†

Properly understood, private law establishes ideal frameworks for

respectful interactions between self-determining individuals, which are

indispensable for a society where all recognise one another as genuinely

free and equal agents. Only private law can form and sustain the variety

of frameworks necessary for our ability to lead our chosen conception

of life. And only private law can cast them as interactions between free

and equal individuals who respect one another as the persons they

actually are, thus vindicating the demands of relational justice. Hence,

the two animating principles of a liberal (that is, autonomy-enhancing)

private law – structural pluralism and interpersonal accommodation.

Building on this account of private law, this essay oers a preliminary

survey of three important challenges to private law in a liberal society.

One challenge, prompted by the injunction of structural pluralism, is

that of identifying missing frameworks, that is: detecting spheres of life

in which private law fails to supply a suciently diverse set of alternative

property institutions or contract types and is thus insuciently

autonomy-enhancing. Another challenge emerges whenever the

* This paper was prepared for a keynote speech at the Private Law in the 21st

Century Conference hosted by the Australian Centre for Private Law at the University

of Queensland, TC Beirne School of Law in December 2015. It rst appeared in

K Barker, K Fairweather & R Grantham (eds) Private Law in the 21st Century (Hart

Publishing, 2017) and is reproduced here by permission of Bloomsbury Publishing

Plc. Thanks to Bernadette Atuahene, Eric Claeys, Hugh Collins, Nestor Davidson,

Neil Foster, Josh Getzler, Keith Hylton, Roy Kreitner, Tom Merrill, Jason Neyers,

Ken Oliphant, Hari Osofsky, Henry Smith, and Rob Stevens for helpful comments.

Reponses to subsequent criticism of some of the claims made here can be found in

‘Postscript to Just Relationships: Reply to Gardner, West, and Zipursky’ (2017) 117

Columbia Law Review 261 (with A Dorfman); ‘Justice, politics, and interpersonal

human rights’ (2018) 51 Cornell International Law Journal 139 (with A Dorfman);

‘Freedom, choice, and contracts’ (2019) 20 Theoretical Inquiries in Law 595 (with

M Heller); ‘Autonomy for contract, rened’ Law and Philosophy (forthcoming 2019,

with M Heller); ‘Why autonomy must be contract’s ultimate value’ Jerusalem Review

of Legal Studies(forthcoming 2019, with M Heller).

† Stewart and Judy Colton Professor of Legal Theory and Innovation and

Director, The Edmond J Safra Center for Ethics, Tel-Aviv University.

2019 ACTA 3

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4 PRIVATE LAW IN A CHANGING WORLD

constitutive good(s) of the social practice that the parties engage in are

in tension with the injunction of interpersonal accommodation. These

cases require private law either to allow these goods to override the

injunction of interpersonal accommodation or else to discard or reform

the pertinent legal (and social) practice. Finally, because the intrinsic

value of private law does not require treating private law and public

law as mutually exclusive categories, private law can consider utilising

public law (vertical) mechanisms to help secure its horizontal mission

and must be careful not to undermine the liberal state’s commitments

to distributive justice, democratic citizenship and aggregate welfare. I

thus conclude with a consideration of the ways in which private law

can coordinate with public law, namely: either supplement its doctrinal

framework with a regulatory infrastructure or adapt it in order to

address pertinent public commitments while still meeting the demands

of relational justice.

I THE TASK

What are the most important challenges private law faces? Part of

the answer to this question likely depends on upcoming changes

in the empirical external reality in which private law operates. But

this question – my task in this essay – goes deeper than that. Private

law, like law more generally, is a justicatory practice: because law

claims to have the legitimate authority over monopolised power in

society, its carriers must always justify its prescriptions and should

moreover seek to further improve the law so that it lives up to its

implicit and often imperfectly executed promises. This means that

an important source of law’s challenges comes from within; that at

least a subset of the challenges of private law is dependent upon the

value of private law. My eorts in this essay will follow this path:

I will oer a normatively attractive conception of private law and

will seek to identify the challenges this conception presents to the

various legal actors who participate in the evolution of private law

or aect its development.

My interpretation of private law, which builds on prior work

I have done both as a single author and in collaboration with

Avihay Dorfman as well as with Michael Heller,1 begins with some

1 See H Dagan Proper ty: Values and Institutions (2011); H Dagan & M Heller

The Choice Theory of Contracts (2017); H Dagan ‘Pluralism and perfectionism in

private law’ (2012) 112 Columbia Law Review 1409; H Dagan & A Dorfman ‘Just

relationships’ (2016) 116 Columbia Law Review 1395.

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