Foreword - Private Law and Power

eds Barker, Degeling, Fairweather, and Grantham (Hart, 2016)

RTF version - 51 kb

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