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Private law theory and taxonomy: reframing the debate

Lookup NU author(s): Professor TT Thiruvallore Thattai

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This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License (CC BY-NC 4.0).

Abstract

The aim of this article is to reframe the taxonomy debate which has, in recent years, come to dominate private law theory. We argue that the debate to date has been flawed by two fundamental mistakes. Firstly, little attention has been paid to how legal taxonomies are actually used. This, we argue, is regrettable: how we build a taxonomy depends on why we build a taxonomy, and a clearer focus on this question produces an approach that is very different from the approaches that currently dominate private law theory. Secondly, both sides in the debate have misunderstood what legal concepts are, and hence tend to misuse them. We argue that legal concepts are Weberian ideal types, and use philosophical theories of concepts to put forward a very different understanding of how concepts acquire content are used in the legal system. Putting these together, we argue for a far more developmental, and historically informed, approach to taxonomy and to legal concepts generally.

Publication metadata

Author(s): Sheehan D, Arvind TT

Publication type: Article

Publication status: Published

Journal: Legal Studies

Year: 2015

Volume: 35

Issue: 3

Pages: 480-501

Print publication date: 01/09/2015

Online publication date: 17/03/2015

Acceptance date: 08/12/2014

Date deposited: 09/09/2015

ISSN (print): 0261-3875

ISSN (electronic): 1748-121X

Publisher: Wiley-Blackwell Publishing Ltd.

URL: http://dx.doi.org/10.1111/lest.12075

DOI: 10.1111/lest.12075

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