Internal and External Perspectives: On Methodology in the New Private Law
Forthcoming, The Oxford Handbook of New Private Law (Andrew S. Gold, John C.P. Goldberg, Daniel B. Kelly, Emily L. Sherwin, and Henry E. Smith, eds.) (Oxford University Press)
17 Pages Posted: 6 May 2019
Date Written: April 28, 2019
Abstract
New Private Law scholarship is concerned with the internal point of view. Yet, that feature does not distinguish it from much earlier work in private law theory. This chapter suggests an additional distinguishing factor: the New Private Law movement tends to combine an interest in the internal point of view with insights from external perspectives and associated methodologies. A leading example is Inclusive Functionalism, which seeks to show how taking private law concepts seriously on their own terms can shed light on private law’s functional benefits. Internalists may likewise draw on external perspectives, including in their development of interpretive criteria. Finally, New Private Law theory also includes hybrid accounts that are neither fully internalist nor externalist. Illustrations are given for each category. As will be developed, each of these possibilities gives New Private Law theory a distinctive approach to understanding private law.
Keywords: New Private Law, internal point of view, external point of view, functionalism, legal realism, private law theory, torts, contracts, property
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