Private Law and Local Custom

Abstract

This chapter explores the relationship between private law and common law. Both private law and the common law fit awkwardly into the dominant theoretical models of law, which emphasize regulation and social control by the state. Thus, the common law has long been criticized for failing to comply with the model of clearly articulated rules that are announced ex ante and applied ex post. The private law, for its part, contains numerous features that make it a poor candidate for a well-designed regulatory regime. The chapter then argues that developments in private law theory suggest a convergence between private law and the common law that responds to these issues, rendering the law both intelligible and providing an answer to the common objection that the common law involves ex post facto lawmaking. In addition, a recovery of this classical common law theory is both conceptually feasible and offers solutions to problems left currently unanswered by neoformalism.