Details
- A classic work, now available in paperback for the first time, affordable for classroom use in advanced courses in private law and private law theory
- Features a new introduction by the author in which he looks back at the work, its context, its aims, and its methods
- Advances a famous argument that private law is an autonomous and non-instrumentalist moral practice with its own structure and rationality
- Pagination of the main text remains unchanged from the original edition, allowing citations to be followed
Nearly twenty years after its original publication, The Idea of Private Law is widely recognized as a seminal contribution to legal philosophy, and one of the leading attempts to explain and justify the moral foundations of private law. Rejecting the functionalism popular among legal scholars, Ernest Weinrib advances the provocative 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 an approach to private law that repudiates the identification of law with politics or economics. Weinrib argues that private law is to be understood not as a mechanism for promoting efficiency but as a juridical enterprise in which coherent public reason elaborates the norms implicit in the parties' interaction.
Private law, Weinrib tells us, embodies a special morality that links the doer and the sufferer of harm. Weinrib 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.
This revised edition makes accessible one of the major works of modern legal theory. It includes a new introduction by the author, looking back at the work, its origins, and its aspirations.
Readership: Academics and students in the fields of philosophy of law and moral philosophy. Academics, lawyers, and students working in private law.
Preface to the Revised Edition
1: Understanding Private Law
2: Legal Formalism
3: Corrective Justice
4: Kantian Right
5: Correlativity
6: Negligence Liability
7: Strict Liability
8: The Autonomy of Private Law
Ernest J Weinrib, Cecil A. Wright Professor of Law, University of Toronto
A native of Toronto, Ernest Weinrib has a PhD from Harvard (1968) and a BA (1965) and a JD (1972) from the University of Toronto. He has been teaching law at the University of Toronto since 1972, and has been a visiting professor at the Yale Law School and at Tel Aviv University. He holds the rank of University Professor (the University of Toronto's highest honour) and is the Cecil A. Wright Professor of Law. His major works also includeCorrective Justice (OUP 2012).
"Ernest Weinrib's new book deserves our highest attention. No one who thinks seriously 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)
"Clearly and elegantly written. The debate that Weinrib engages is important and Weinrib's own position in the debate should be heard. He makes a significant contribution by arguing the importance of understanding tort law by reference to its own internal structure." - George P. Fletcher, School of Law, Columbia University
"The Idea of Private Law presents a position about tort law which in my view is essential, and develops that position in a way that is both powerful and eloquent. Weinrib stands out among those who have analyzed tort law from a justice perspective. This is a brave and distinguished book." - Gary T. Schwartz, University of California, Los Angeles
"The Idea of Private Law is a complex and stimulating book which deserves to be read by anyone interested in private law. Weinrib shows clearly why certain theories about the functions and justifications for private law are inadequate, and he causes the reader to think in new and fruitful ways about old problems." - Peter Cane, Oxford Journal of Legal Studies 1996
