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Private Law and Power, eds Barker, Degeling, Fairweather, and Grantham
(Hart, 2016)
In 1914, before the onset of United States legal realism, Roscoe Pound spoke of the
temporary expedient of justice where the advantages claimed are ‘directness, expedition,
conformity to the popular will for the time being, freedom from the bounds of purely
traditional rules, freedom from the technical rules of evidence and power to act upon the
everyday instincts of ordinary [people]’. Pound was speaking of justice without law. Law
constrains all of these matters. This collection of essays is about how private law constrains
power, including State, corporate, or individual power. It is also about how private law is, and
should be, itself constrained.
There are extremely difficult questions underlying the extraordinary essays in Private Law
and Power. The first question: what is private law? It is commonly conceived as the law that
is applied between private persons rather than the law between those persons and the State.
However, the divide between the private and the public is very difficult. One of the themes of
this book is the way that private law is enforced by the State. An understanding of the divide
between private and public also immediately invites the question of what is meant by the
State. It is made more difficult by public law rights that have been given private effect. One
example is the use of the 14th Amendment to the United States Constitution for private rights
described as ‘substantive due process’. Another is the use of s 6 of the Human Rights Act
1998 in the United Kingdom to develop private rights.
A second deep seated question: what is the function of private law? On one view, private law
exists only as a tool of corrective justice, to rectify or correct. This view has deep roots. In
Nichomachean Ethics, Aristotle described corrective justice as operating ‘such that each party
has the same both before the transaction and after it’. A formalist conception of corrective
justice sees the process of rectification as independent of any distributive policy concerns that
arise outside this formal conception of the legal system. The most brilliant exponent today of
this formalist view is Ernest Weinrib. In his introduction in this book, Professor Barker
describes the growing body of disciples of Weinrib as Weinribians.
A third question: how should private law operate to fulfil its function? It is here that the book
turns to questions of power. These questions of power operate at many levels. At the
structural level, as Peter Cane observes, we could compare the traditional English conception
of courts exercising private and public law power with the French approach to separate courts
exercising public law power (headed by the Conseil d’Etat). With the growth and expansion
of administrative tribunals, the older Diceyan model of operational equality has evaporated.
Then there is the question of the operation of private power. In the French debates which
preceded the 1804 adoption of the Napoleonic Code, Jean-Étienne-Marie Portalis argued that
the Code ought only to express matters at a high level of abstraction. He thought that it was
better to leave it to the ‘judge and the jurist, imbued with the general spirit of the laws, to
direct their application’. The common law has always preferred rules. General principles,
once a characteristic trait of equity, are now subordinated to a gap-filling function. As Sir
Sydney Kentridge wrote, when acting as a Justice of the South African Constitutional Court,
‘If the language used by the lawgiver is ignored in favour of general resort to ‘values’ the
result is not interpretation but divination’.
To some, particularly United States realists, the obsessively technical and formal interstices
of the law are boring. This book would have little lure for them. United States private law
was not always so exciting. In The Federalist Papers, Hamilton, echoing Montesquieu, wrote
of the judiciary as having neither force nor will, but merely judgment. But realist scholarship
in the United States is now often marked by an exciting focus on policy. Private law in the
United States, developed and refined over the two millennia since the Roman jurists, has now
been subjugated by the realists to a sub-division of an independent field of learning which is
less than a century old. This is the field of economics. The same future may loom in Europe.
The European courts in Luxembourg and Strasbourg have brought more realism to the formal
jurisdictions such as England and Germany than the other way round. Private Law and
Power is a response to this siren call of policy, which has so far been resisted in the private
law in jurisdictions such as Australia and England which feature prominently in the essays. In
Australia, as Dyson Heydon wrote in 2011 without lament at the absence of United States
realism, the ‘attainment of just outcomes is often accompanied by boredom’. The
extraordinary essays in this book are part of the search for underlying truth in the structure,
nature, and operation of private law, rather than a functional approach to private law as
economics or applied policy. The beauty of that search is not yet lost on this continent.
James Edelman
Federal Court of Australia
11 May 2016