Overview

Private law applies our deepest intuitions about personal responsibility and justice to the property we own and use, to the injuries we inflict or avoid and to the contracts which we make or break. This text offers a new perspective on the phenomenon of private law. Rejecting the functionalism popular among legal scholars, it advances the idea that private law is an autonomous and non-instrumental moral practice, with its own structure and rationality. Weinrib draws on Kant and Aristotle to set out a formalist approach to private law that repudiates the identification of law with politics or economics, arguing that private law is to be understood not as a mechanism for promoting efficiency but as a juridical enterprise in which coherent public reason elaborate the norms implicit in the parties' interaction. The book combines philosophical exposition and legal analysis and pays special attention to issues of tort law. Private law, Weinrib tells us, embodies a special morality that links the doer and the sufferer of harm. He elucidates the standpoint internal to this morality, in opposition to functionalists, who view private law as an instrument in the service of external and independently justifiable goals. After establishing the inadequacy of functionalist approaches, Weinrib traces the implications of the formalism he proposes for our ideas of the structure, coherence and normative grounding of private law. Furthermore, the author shows how this formalism manifests itself in the leading doctrines of private law liability. Finally, he describes the public but non-political role of the courts in articulating the special morality of private law.

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9780674442122

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Reviews

Ernest Weinrib's new book deserves our highest attention. No one who thinks seiously about the nature of private law can afford to ignore this work. In addition to providing a compelling account of the nature of private law, this book puts into serious question the leading contemporary accounts of the nature of law. In short, this is a book from which any student of law will learn much...No account of private law can be complete without addressing Weinrib's position. -- Dennis Patterson Modern Law Review

The Idea of Private Law is Weinrib's first monograph presentation of his quarter century of writing in legal philosophy. This presents his version of legal formalism....Plausible reactivation of classical positions in philosophy and jurisprudence is enough to recommend the work, even had not its contemporaneity to concerns before our legislatures... and to colloquy with all other legal philosophy of note today...done so.--C. B. Gray Review of Metaphysics

Author Information

Ernest J. Weinrib is Professor of Law and Special Lecturer in Classics at the University of Toronto.

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