It’s a heady time to be a theorist of private law. After decades of vague post-Realist functionalism or reductive economic theories, the latest generation of private law theorists have provided a proliferation of new philosophies of tort, contract, and property. The result has been a tremendous burst of intellectual creativity. While Kant and Hegel have been dragooned into debates over torts and contracts and even such supposedly wooly headed thinkers as Coke and Blackstone have been rehabilitated, there have been fewer efforts to generate natural law accounts of private law than one might expect, particularly in light of the revival of natural law theory in the wake of John Finnis’s publication of Natural Law and Natural Rights. To be sure, natural law theorists have turned their attention to private law topics, but until recently there have been few efforts to provide natural law synthesis of private law theory. Nicholas McBride’s ambitious two-volume work The Humanity of Private Law offers such a synthesis. These books are a tour de force of scholarship. The Humanity of Private Law combines a deep understanding of legal doctrine, a broad engagement with contemporary private law theory, moments of trenchant social criticism, and a subtle set of philosophical arguments that range well beyond the normal scope of jurisprudence. They are the sort of books that repay close reading and from which one can learn much. They also, however, offer a cautionary tale of the limits of legal theory. The very fecundity and depth of contemporary debates over private law creates a temptation toward what we might call cosmic private law theory. The dangers of this temptation are also on display in The Humanity of Private Law.
66 American Journal of Jurisprudence 395-408 (2021)
Oman, Nathan B., "The Temptation of Cosmic Private Law Theory" (2021). Faculty Publications. 2059.