Flourishing Under Private Law? A Critique of McBride’s Explanatory Theory

Abstract

What is the best explanation of private law? For many of us familiar, never mind exasperated, with the state of the current theoretical debates, any answer that is not some variation on, or combination of, “corrective justice,” “rights,” or most questionably, “the legal philosophy of Immanuel Kant” comes as a blessed relief. In this respect, Nicholas McBride is off to an auspicious start with his impressive new monograph, The Humanity of Private Law Part 1: The Explanation [HPL], which sets out “a way of thinking about private law.”1 Put simply, he argues that private law is concerned with promoting the flourishing of its subjects while preserving its legitimacy.2 At first sight, this might seem unobjectionable. Who could deny that flourishing is something that should be promoted? And we should be slow to accuse judges and other lawmakers of deliberately crafting the opposite: a private law that diminishes people’s flourishing and is unconcerned with maintaining its legitimacy. But first impressions can be deceiving. In what follows I give an overview of McBride’s theory before arguing that it is unpersuasive as an explanatory account of private law doctrine.