One of my summer projects–still hatching–concerns the idea of “drift” in what is regarded as prototypically “public” and “private” law. That is, the tendency of what was regarded as public law to be privatized, and the tendency of private law to become a matter of public concern. For example, law and religion is traditionally understood as public law in its constitutional dimensions–the law that concerns the state’s relationship to the citizenry respecting religious questions. But there are also features of law and religion that may be considered private law: contractual arrangements based on religious law, for example, and others. Of course, the categories of public and private have been famously attacked by legal realists and their descendants as empty formalisms. In more recent years, however, scholars coming from a variety of perspectives have revived and defended the distinction. In tort law, for example, John Goldberg and Benjamin Zipursky have done so in their book (and prior work), Recognizing Wrongs, and others as well in what is called the “new private law” perspective.

From his own distinctive, Kantian perspective, so has the eminent private law theorist Ernest J. Weinrib. Here is an important new book on themes he has been developing for many years, and which go very much to the private/public division: Reciprocal Freedom: Private Law and Public Right (OUP).

Reciprocal Freedom elucidates the relationship between private law and the state, presenting reciprocal freedom as the normative idea underlying a legal order in which private law occupies a distinctive place. Weinrib develops a set of interconnected conceptions of private law, corrective justice, rights, ownership, the role of legal institutions, distributive justice, the relationship of constitutional rights to private law, and the rule of law.

The book is explicitly Kantian in inspiration; it presents a non-instrumental account of law that is geared to the juridical character of the modern liberal state. Combining legal and philosophical analysis, it offers a sequenced and legally informed argument for understanding law as necessary to our co-existence as free beings.

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