Associate Professor John Gava queries the dichotomy of public and private law. How does it complicate, or limit, our thinking about the law? What does it achieve?
Nothing in this comment is motivated by a desire to change anything or respond to anything or to critique anything. I’m simply curious about something that has puzzled me since I’ve arrived in Adelaide some years ago.
I know that for various reasons it’s convenient to talk above public and private law. But I wonder whether there is any real substance to this supposed dichotomy. Take for example my interest in contract law. I see in contract law a continuing battle between judges and commentators on the one hand who see contract law as a means of regulating the market. The tool adopted to achieve this end is some form of contextualist judging, be it one that gives effect to the perceived needs, expectations and behaviour of market players, or, on the other hand, some type of formalism based on the idea that market players want predictable rules that they can contract around. The competing vision, let’s call it the justice model, is one where judges and commentators see contract law as a means of giving effect to the agreements made by adults of sound mind, etc. This vision emphasises the political equality of contracting parties. To my mind this form of analysis is the best way to understand the otherwise inexplicable and fundamental differences of opinion over such topics as good faith, unconscionability, implied terms, etc, etc in modern contract law.
This battle is one for the heart of contract law and I can’t see how this is anything other than a constitutional issue. Contract law lies at the heart of the common law and common law judicial reasoning and both underpin our constitutional structure. In other words, the development of contract law raises, to my mind, issues that can be described as both public and private but that are better described not as a mixture of two types of law but just as law. When one adds the vast legislative input into what we call contract the “public” aspect of contract law is only emphasised.
I can understand that for any number of reasons one can make the distinction between public and private law – I just wonder whether such a distinction is particularly helpful or whether it makes understanding law just that much harder.
John Gava is an Associate Professor at the Adelaide Law School. He has for many years taught, researched and read in the area of ‘law’.