Keeping It Private

Public law adjudication has grown dramatically in recent decades in many English-speaking countries. In the United States, and increasingly in other countries where it used to be rare for public questions to be decided in court, controversial questions of public policy are tried as constitutional or human rights issues and decided by court order. But in other areas of law - in everyday tort, contract, and property cases - court decisions are typically much less dramatic and seldom if ever announce controversial innovations in public policy. Yet in private law cases too there are implicit questions of social justice.

In common law countries, perhaps not surprisingly, tort, contract, and other private law cases are often decided on common law principles. Common law has a style and ethos of its own. It is based on precedent and, although precedent is open to modification, the common law style is anything but radical. With roots in the nineteenth century and earlier, common law often reflects classically liberal ideas, more or less consciously and more or less robustly.

Instead of approaching private law cases with a common law mindset, should judges not treat these cases the way they might treat public law cases? Should courts not promote a vision of justice and human rights through private law adjudication, just as they sometimes - and in many countries increasingly - do in notable public law decisions? This Article suggests several reasons why they should not. Turning private law more public in such a way would have considerable costs in legal stability, transparency, legitimacy, and judicial habits of neutrality and impartiality.

Each of these considerations in turn is associated with what is generally thought of as the Rule of Law. The classically liberal ideas in the common law bloodstream themselves have at least some association with political freedom and the Rule of Law. And even if one is sceptical about classical liberalism and enthusiastic about today's public law, one might consider that public acceptance of ambitious public law adjudication may depend at least in part on the credit that courts build up through morally and politically unambitious day-to-day common law adjudication.