The law’s own terms

In this short article, I cannot do justice to all of the aspects of The Idea of Private Law, let alone to all aspects of the private legal relationship that is its subject matter. Instead, I limit myself to a brief description of the order in which these aspects of the relation develop before turning to a reflection on its distinctive ‘internal’ perspective. Many of the law’s familiar distinctions can be made to look puzzling when an external perspective is assumed, even if it is the external perspective of one or the other of the parties to litigation. Many writers wonder how the law can treat economic losses differently than property damage, or differentially declare intention relevant or irrelevant to liability, or why the defendant’s liability should depend on arbitrary factors such as the plaintiff’s earning capacity. An internal perspective explains how the law’s framing of a question can exhibit a rational form.