The Domain of Private Law: Conceptual Thought in Anglo American Law

This article offers an account of how American law changed from a system once dominated by traditional doctrines of private law into a legal culture where questions of procedure, public law, and statutory interpretation uniquely predominate. Using contemporary Anglo-Commonwealth law as a mirror, I raise skepticism at the easy notion that classical common law doctrines are simply unfit for the modern administrative state. Instead, I offer a theory about the role of conceptual legal thought in maintaining the legal order. The article demonstrates how each system funnels its central questions towards the areas of law understood as conceptually sound. Thus, though realism successfully deconstructed private law, American conceptual analysis migrated to public, statutory, and procedural law — and in turn these areas have become increasingly significant. By contrast, conceptualized private law remains at the center of Anglo legal analysis while there is correspondingly less intellectual and doctrinal investment in matters of procedure and statutory interpretation. The payoff of this comparison is to show how the domain of private law correlates to the role it plays in maintaining the legal systems’ legitimacy, and how analysis gravitates towards areas seen to stand on strong conceptual foundations.