Date: Tue, 12 Dec 2006 09:41:10

From: John Murphy

Subject: Private law

Jason:

Defining private law is like defining tort. There are elements of private law about which everyone would agree; but things get a little bit fuzzy around the fringes. I think this is because people work from different starting points which tend to point to different sets of answers. And who is to say which of the various starting points - some of them have come through in the emails you have already received - is definitively the right one.

For example, for some people, the crux is the critical presence of private rights, whereas for others a negative definition may be the key (ie, "anything that isn't public law"). So, whereas the private international law rules on jurisdiction and the recognition of judgements, for instance, may fall outside the first definition here because they have nothing to do with private rights per se, they would nonetheless fall within the second on the basis that those rules have nothing whatever to do with public law.

But even if one accepts the second definition there are problems. This is because there is no certainty about the scope of public law. (Cf Loughlin: "The Idea of Public Law" (but look at review of that in, I think from memory, the MLR)). This necessarily means that the border between private and public law becomes blurred. A classic example of this blurring occurs (at least at the hands of the judges) in relation to the negligence liability of public authorities. The language of ultra vires and Wednesbury unreasonableness are well known to have reared their heads in this context: so are such cases public or private law cases? Also: while public nuisance is generally taken to be a crime, actions for damages based on personal losses can sometimes be recovered. Is this, then, a creature of the public law, the private law or both?

As I said before, everything seems (to me at least) to depend on where you start the analysis. If you start by asking: can X sue for damages for his personal injury, you may well be minded to say public nuisance should be seen as a part of the private law. But if you begin with the R v Rimmington message that what is critical in public nuisance is the infringement of a public right (as opposed to the multiple infringements of private rights), then you'll perhaps be minded to say it is properly to be seen as an aspect of public law.

In short, I don't have a firm view on where the boundaries of private law lie. And I guess, also, that I'm likely be remain sceptical about anybody that does have a firm view IF that view works ONLY for the purpose of their particular premise unless and until they convince me that their's is demonstrably correct premise from which to proceed. But that hasn't happened yet.

Since Hector took to flagging up literature: you might want to note, along with others on this list, that my colleague, William Lucy, has recently published a book on the philosophy of private law. I haven't read it yet; but as you'll see from the publisher's blurb he outlines the "realm of the philosophy of private law". I've copied this email to him in case he wants to chip in to this discussion about how to define private law. [Who knows, he may even give or lend me a copy of his book to try to convince me that he is right.]

And that's more than enough from me ... I've a lot of Xmas shopping to do.

So, in the words of Noddy Holder, Merry Xmas everybody!

John Murphy

<<<< Previous Message  ~  Index  ~  Next Message >>>>>