Philosophy of Private Law

Introduction

The wording “philosophy of private law” is problematic and can be understood in different ways. It has been chosen as motto by a rather recent current among English-spoken legal theorists (notably Lucy 2007; Weinrib 2012) who claim for the specificity and the formal autonomy of legal principles in the field of property, contract, torts, unjust enrichment, and restitution. It is noteworthy that these authors, teaching in the United Kingdom, the United States, and Canada, use the categories of common law classical courses to defend the idea of a universal and abstract philosophy of private law. One can also observe that this school of thought is using the same historical references to Aristotle, Aquinas, Kant, or Hegel, who are analyzed as advocates or forerunners of this so-called philosophy of private law. This situation creates a point of contact with historical works about the philosophical origins of some basic concepts of private law (e.g., Gordley 1993) and raises...