The Autonomy of Private Law

Ernest J. Weinrib

in The Idea of Private Law

Published in print September 2012 | ISBN: 9780199665815
Published online January 2013 | e-ISBN: 9780191748622 | DOI:
The Autonomy of Private Law

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This chapter returns to the claim adumbrated in Chapter 1, that private law is autonomous and nonpolitical. Turning from substance to process, from specific tort doctrines to the judicial roles, it elucidates the public nature of corrective justice when actualized in an operating system of private law. By considering the relationship between the formalist idea of private law and the concrete particularity of the social life that private law governs, it shows how private law can be autonomous without being detached from social reality, and how corrective justice can become public without being political. The autonomy of private law refers to its self-regulation as it realizes the distinctive rationality immanent to it. Corrective justice is non-political because, unlike distributive justice, it involves the choice of no external purposes. The chapter concludes by discussing the ways in which private law so conceived is both determinate and indeterminate, stable and variable.

Keywords: autonomy of law; law and politics; corrective; distributive justice; judicial role; law as public; indeterminacy; variability of law

Chapter.  11496 words. 

Subjects: Jurisprudence and Philosophy of Law

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