Internal and External Perspectives

Abstract

This chapter reviews several recent themes in New Private Law scholarship. Some New Private Law scholarship is functionalist at its core, yet it makes use of the internal point of view to show how private law can function successfully. Understanding the internal point of view on doctrinal categories and concepts can help to clarify how those categories and concepts are useful. Such inclusive functionalist theories may show how private law’s deontological concepts motivate regulated parties, or how their modularity permits law to address problems of complexity. Indeed, nonfunctionalist approaches may also show an external orientation while taking the internal point of view as a starting point.Other New Private Law scholarship is interested exclusively in providing correct understandings of law from the internal point of view. Such internalist accounts may nonetheless draw from external perspectives and methods in an effort to develop adequate interpretive criteria. Moreover, the application of these interpretive criteria may lead to substantive theories of tort, contract, fiduciary relationships, or property that are partly comprised of classically functionalist understandings.Interestingly, New Private Law theory also incorporates hybrid accounts; these mixed approaches take different forms. A good example is the kind of theory permitted by a moderate transparency criterion: a theory that is “in the right ballpark.” These multiple approaches in combination represent a genuine flowering of private law theory as a field of inquiry.