Private Law Exceptionalism? Part I: A Basic Difficulty with the Structural Arguments from Bipolarity and Civil Recourse

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• 作者：Avihay Dorfman
• 刊名：Law and Philosophy
• 出版年：2016
• 出版时间：April 2016
• 年：2016
• 卷：35
• 期：2
• 页码：165-191
• 全文大小：420 KB
• 作者单位：Avihay Dorfman (1)
  
  1. Faculty of Law, Tel Aviv University, Tel Aviv, Israel
  
• 刊物类别：Humanities, Social Sciences and Law
• 刊物主题：Law
  Law Theory and Philosophy
  Philosophy of Law
  Social Sciences
  Political Science
  Logic
  
• 出版者：Springer Netherlands
• ISSN：1573-0522

文摘

Contemporary discussions of private law theory have sought to divine the deep structure and content of private law by reference to two key distinctions. First, the distinction between private and criminal law has been utilized to flesh out the distinctively bipolar structure of private law (and its various departments, namely, property, contract, torts, and unjust enrichment). Second, the distinction between formal and distributive equality has served to highlight the special terms of interaction established in private law. In these pages, I take up the former distinction, arguing that its theoretical significance is overdrawn. I argue that it does not succeed in identifying private law’s precise nature.