The Political Origins of English Private Law

The paper seeks to explain the emergence of the view that English law contains a fundamental divide between public and private law. This is a surprising view, since historically English law did not recognize a clear distinction between the two. Proponents of the divide explain it in terms of the internal rationality of law, and insist on the importance of keeping the divide as a means of keeping private law politically neutral. By contrast, I propose to explain this development as a response to the potential problem of political legitimacy arising from the fact that courts are in charge of making law in this area, despite being unelected and politically unaccountable. That by itself shows that the divide between public and private law is the product of political concerns, but I further argue that the prevailing view of law among proponents of the divide is a revival of A.V. Dicey’s conception of English law in general within the narrower domain of private law. As various scholars have shown, Dicey’s views on English law are, in part, the product of his political opinions. Therefore, if I am right in finding similarities between Dicey’s views of law and those of contemporary proponents of the distinctness of private law, this lends support to the conclusion that both are founded on similar political views