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Utility and rights in common law reasoning: rebalancing private law through constitutionalization

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In the evolution of private law, legal reasoning has always confronted the fundamental problem of reconciling private interests with collective goods. Philosophers analyse this problem of justice in terms of protecting individual rights whilst at the same time maximizing utility or general welfare. The private law of tort, contract, and property rights that emerged in the nineteenth century provided a fortress of protections for individual rights, but the consequences for collective welfare were quickly found wanting. These consequences were addressed by the welfare state, regulation, and the separation of new spheres of private law such as consumer law and labour law from mainstream doctrine. By the second half of the twentieth century, however, these regulatory measures had triggered a marked shift in private law reasoning as a whole, which became more instrumental or policy oriented. It evolved into a hybrid of the old private interest reasoning and modern policy oriented regulatory reasoning. At extreme moments, common law reasoning was almost reduced to a variant of economic reasoning concerned with maximizing wealth. In reaction, what is happening now is the search for ways to rebalance the underlying values of utility and rights. The task is to construct a legal language through which private law can be reoriented in ways which both give full weight to a wide range of individual rights and at the same time serve collective interests. The increasingly popular method for achieving this task involves the constitutionalization of private law. By grounding the principles of private law in the general principles and abstract rights found in constitutions, it is hoped to restore the balance between utility and rights. Yet this approach requires new techniques for transforming the content of constitutional principles and civil liberties. These public law principles need to be reinterpreted so that they make sense in the context of the relations between private citizens. Furthermore, these public law rights need to be extended into the social, economic, and cultural sphere, so that they can address the questions of distributive justice that the discourses of civil liberties leave unanswered.

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