chapter  8
28 Pages

Justice, causation and private law

Some legal distinctions are drawn with great clarity and precision. Thus, contract lawyers would distinguish between reliance loss and expectation loss, common mistake and mutual mistake, void and voidable contracts, or discharge by frustration and discharge by breach. Laymen need not concern themselves with the significance of these concepts; but lawyers, if called upon, could o€er impressively precise and convincing accounts of such distinctions, even if in a minority of cases the application of the distinction may give rise to problems at the borderline. Other legal distinctions are less clear, and this is sometimes true of distinc-

tions that are, in a sense, fundamental to the legal system as a whole. Thus lawyers take for granted the fact that developed Western systems of law are divided into the two sectors of ‘public’ and ‘private’ law. The distinction forms a general background for lawyerly understandings, but not one that lawyers could articulate with great confidence. They could readily assign various departments of law to the one sector or the other: there would, for example, be universal agreement that administrative law, tax law, planning law, welfare law and constitutional law are all varieties of public law; similarly that contract, tort, property, and restitution are instances of private law. Yet what precisely is the criterion that underpins the classification? What indeed is the significance of the distinction? Unlike the distinctions of contract doctrine mentioned above, the distinc-

tion between public and private law will only rarely play a dispositive role in the decision of litigated disputes (it may play a part, for example, in questions relating to the jurisdiction of particular tribunals, or the appropriateness of particular procedural rules) and then it is likely to be addressed in terms of that particular context, rather than as a highly general distinction requiring general definition. Legal practitioners and judges are concerned with the immediate business of representing clients or deciding particular cases. It is therefore left to the legal theorists to speculate about the public/private distinction.