Lloyd's Maritime and Commercial Law Quarterly
IS THERE SUCH A THING AS PRIVATE LAW?
David Campbell*
In Justice in Private Law, Peter Jaffey seeks to give a comprehensive and unified “interpretively” adequate account of the “traditional private law”, the main areas of which are property, contract and tort. Jaffey argues that both “corrective justice” and “distributive justice” theories of private law are seriously inadequate, and puts forward a “reconciliation” of them. Jaffey’s new theory gives supremacy to distributive justice, but seeks to avoid annihilating corrective justice through the concept of the “standpoint limitation”. Whereas legislation can reset rights on the basis of a wide knowledge of distributive concerns, adjudication should give effect to what the individual parties to disputes could reasonably know and expect on the basis of existing rights, though when adjudication itself requires the development of the law, this should be informed by distributive principle. This theory of the private law fundamentally based on the collective judgments of distributive justice cannot sustain the inviolability of the private which is necessary for the economic and legal freedoms of the market economy, and Jaffey’s concept of traditional private law embraces a very great deal of state intervention.
INTRODUCTION
In his important book Justice in Private Law,1 a comprehensive statement of the views of one of our leading commentators formed after a quarter-century of reflection on its subject, Professor Jaffey makes a both interestingly distinctive and simultaneously even more interestingly characteristic contribution to the now very large legal academic literature on private law theory. Basing his discussion on the distinction between corrective and distributive justice, Jaffey argues that both are “interpretively” inadequate because both fail to accommodate essential features of the “traditional private law”, and so in use their distinction breaks down. Though the principal idiom of private law theory is corrective justice, accounts of the positive law, particularly of negligence, are shot through with distributive justice considerations. Jaffey advances an alternative “general account of private law” in which distributive justice, reworked to respect what he calls the “standpoint
* Professor of Law, Lancaster University Law School. I am grateful to Allan Beever, Peter Jaffey and the Editor and his referees for their comments.
1. Justice in Private Law, Peter Jaffey, Professor of Law, Leicester Law School, University of Leicester (Oxford, 2023), xii + 179 pp plus 3 pp Index. ISBN 978-1-5099-5388-2. Hardback £80, Paperback £45. Unattributed references are to this book.
Is there such a thing as private law?
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