Hanoch Dagan and Benjamin C Zipursky (eds), Research Handbook on Private Law Theory (Edward Elgar Publishing, Cheltenham, Northampton 2020) x + 507 pp. ISBN: 978-1-78897-161-4. ₤ 189.90

According to the publisher, ‘Research Handbooks in Legal Theory are designed to provide original and sophisticated discussions from an international ... range of contributors. They are meant to provide ‘high-level introductions to specific topics, issues, methods, and debates.’ The subject of this book, according to its title, is Private Law Theory. The reader might expect abstract explanations of the most important topics of private law in general, ie about torts, contract, or restitution, or about regulation in, and by means of, private law, about private law and society, or about the constitutionalization of private law. Such readers may well be disappointed. The book does not contain general explanations of private law institutions, but rather a reflection of American (US and Canadian) common law from a somewhat higher degree of abstraction.

The scene is set by the editors’ introduction on the ‘distinction between private law and public law’. Many stories may be, and have been, told about this distinction, which is deeply entrenched in continental European legal systems. It can be traced back to Roman law and its categories; later, it became a legal mirror of the political structure of European societies. John Allison, in his brilliant A Continental Distinction in the Common Law (Oxford 1996), has explained why English common lawyers have long been hesitant to integrate this distinction into English legal thinking. The reader will find nothing of this in the introduction, but rather an American perspective, which has a lot to do with American private law and the history of American legal thinking (legal realism; critical legal studies; new formalism). There is nothing wrong with this perspective, of course, but a meaningful theory of this distinction should reflect other perspectives as well. The first question to ask might be, why most legal systems discuss this distinction mainly from the point of view of public law, while American common lawyers mostly make use of it from a private law perspective.

Similarly, specifically American perspectives limit the following articles: Robert E Scott discusses ‘A joint maximization theory of contract and regulation’ (22–38), claiming that ‘American contract law is univocally dedicated to facilitating parties’ efforts to realize their joint intentions to maximize the value of their contracts at the time that they form them.’ (37 f) This may well be so, but it is a statement of American contract law, rather than about contract law in general. European contract lawyers might emphasize that contract law has often been, and is today, used as an instrument for external purposes, such as the maximization of war production in belligerent times, or the integration of the European market today. Such aims are clearly ‘separate from’ and ‘in conflict with the value of joint maximization’.

Aditi Bagchi, in a lucid article, writes on ‘Public justice and private consent’ (58–74). Her highly abstract analysis of the tensions between the values of consent and distributive justice may be quite useful also for non-American readers, but it does not provide a full picture of the theoretical issues involved. Thus, European courts such as the German Constitutional Court have looked for answers to such conflicts on a constitutional level, arguing that the effects of a contract may violate basic constitutional rights. Such a constitutionalization of contract law, however, may fundamentally change the structure of private law thinking. A general theory of contract law needs to reflect such changes. Moreover, the optimism of American writers who in such contexts often discuss public ‘justice’ only may appear somewhat naïve from the perspective of continental European history. Thus, during the Third Reich, it was quite common for courts to rely on arguments such as the Volkswohl (an ideological expression for the ‘public good’) to nullify contracts made with a Jewish party or otherwise discriminate against minorities. The idea of public justice may be more difficult than Bagchi and other American writers seem to assume.

Arthur Ripstein, in a contribution on ‘Corrective justice’ (255–269), which may be read as an authoritative restatement of views held by authors such as himself or Ernest Weinrib (who writes on ‘The normative structuralism of corrective justice’ [484–498]), presents a corrective-justice, as opposed to, an instrumentalist view of tort law. According to Ripstein and Weinrib, this approach is characterized by an ‘exclusive focus ... on the transaction between the defendant and the plaintiff’ (255), and Ripstein seems to suggest that such a view was taken for granted ‘[f]rom the ancient world through the nineteenth century’. I do have my doubts whether this is really a correct picture of 19th century American case law. In any event, as far as European history is concerned, such analysis does not appear fully appropriate. European courts have never found it difficult to integrate distributive concerns into a corrective-justice framework of tort law. This can clearly be seen in 19th century English nuisance cases, where courts decided on conflicts between new industries or sparking trains, and the established interests of neighbouring farmers and residents. And it could be seen during the 20th century, when courts in many legal systems discussed whether monetary interests in personality rights should be protected in tort law. Likewise, where liability standards are determined, courts have often considered distributive concerns. After the unification of Germany, for instance, German courts made it quite clear that they would place less strict duties of care on municipalities in the East because of their notoriously precarious financial situation. Thus, the challenge for tort law theory is to understand the interplay of corrective justice and distributive concerns. The idea that corrective justice theories were alternatives to distributive approaches such as the economic analysis is plausible only within the rather peculiar tradition of American tort law theory.

Obvious proof of the high relevance of distributive considerations also in American tort law is, however, Anita Bernstein’s paper on ‘Tort as yet another locus of gender injustice in the distribution of money’. The point of this fascinating paper is not that corrective justice should be replaced with distributive considerations. Rather, Bernstein argues that tort lawyers, within their traditional framework, should reflect possibly unjust structures of inherited rules and practices. Tort law can only be fair if its doctrinal categories grant equal protection to men and women. Where what Bernstein addresses as ‘reproductive wrongs’, sexual harassment, or other wrongs with typically or necessarily female victims are not acknowledged, or where typically female harm is otherwise undercompensated, the categories of tort law are unjust in a distributive sense and need to be re-designed. But that does not mean replacing the traditional corrective-justice framework with a new, different structure. It simply calls for the acknowledgement of new torts or types of harm and compensation. Although Bernstein likewise focuses on American law, her article should also get readers in Europe thinking, where this issue has unfortunately not yet received sufficient attention.

This overview suffices to show that the problem of this volume is its overly narrow focus on American law: there is no systems theory; nothing, likewise, on the constitutionalization of private law. There is one article on the ‘Economic theory of tort law’ (by Yotam Kaplan), but nothing, for example, about market integration, or regulation in general, through contract or consumer law. Only four out of 31 authors are from England, all other contributions are written by North American scholars or scholars who, though being based in Israel, usually focus on American common law. It is not surprising, therefore, that the content of the book is American common law as well. This would not be a problem, of course, if the book were about doctrine. Doctrinal writing often focusses on some positive law. But a narrow focus on a positive legal system is problematic where the issue is legal theory. My criticism is not simply that the book should have been entitled American Private Law Theory. The decisive point is rather that such a theory provides no insights into contract law in general, but rather general propositions about a specific legal system; it may thus become sterile. It is not only of little interest for non-American scholars, but moreover, and more importantly, loses its critical bite. Indeed, most articles are explanatory; they take the law as it stands for granted. Only few contributions, such as that by Anita Bernstein, find an inner-legal standpoint from which the present law can be reflected in a critical way. But is such criticism not what scholarship should be about? Are legal scholars really needed simply to explain the law as it stands? Or should they not rather think of alternatives, or at least provide alternative, new insights? A non-instrumental, genuinely legal analysis may profit from a comparative perspective and from an engagement with the observations, concerns, and theories developed elsewhere. Legal theory, for sure, is neither uniquely American nor a specific feature of the common law.