Felipe Jiménez (USC Gould School of Law) has posted Understanding Private Law (Forthcoming in Thilo Kuntz and Paul B. Miller, eds., Methodology in Private Law Theory (Oxford University Press, Forthcoming)) on SSRN. Here is a passage from the introduction:
Theories of private law attempt to understand private law—to render private law intelligible.1 This is true for descriptive, interpretive, and prescriptive theories.2 It is true, in other words, whether the theory’s concern is giving an accurate description of private law; offering a rational reconstruction of the values served by private law as it exists; or offering an argument for what values ought to underlie and guide private law.
And from the conclusion:
Understanding private law requires understanding not just the rules and doctrines of private law but the underlying cultural, ideological, and philosophical ideas that characterize it. Understanding private law, in other words, is a matter of interpreting the cognitive structure that characterizes the practice for those actively engaged in it.
This form of understanding is necessary for interpretive, normative, and descriptive projects in private law theory. But if it is necessary, then the question is what type of methodology is best suited for understanding private law theory. My view, as I have argued, is that comparative jurisprudence is an attractive model for that methodology. Comparative jurisprudence highlights, precisely, that the content of private law depends on more than its surface rules and doctrines; that understanding private requires understanding the values and commitments of legal agents; and that this requires the adoption of an internal perspective.
As I have explained, instrumentalism—and particularly, the thoroughgoing instrumentalism that is characteristic of some forms of law and economics—is not well suited to adopt this perspective. It basically ignores that law is a cultural phenomenon characterized by modes of thought and talk that are not merely epiphenomenal or instrumental. Formalism, while better in this specific aspect, tends to downplay the contingency of private law and the fact that philosophical ideas are made relevant by social practices—not the other way around. The NPL is in a better position than both instrumentalism and formalism. But, as I argue, it should move towards a greater insistence on the professional character of private law.
Recommended.