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Private law theory and taxonomy: reframing the debate

Published online by Cambridge University Press:  02 January 2018

Duncan Sheehan  and
TT Arvind
Duncan Sheehan*
Affiliation:
University of East Anglia and Newcastle University
TT Arvind*
Affiliation:
University of East Anglia and Newcastle University
*
Duncan Sheehan, Law School, University of East Anglia, Norwich Research Park, Norwich NR4 7TJ, UK. Email: duncan.sheehan@uea.ac.uk. TT Arvind, Newcastle Law School, Newcastle University, Newcastle upon Tyne NE1 7RU, UK. Email: t.t.arvind@ncl.ac.uk
Duncan Sheehan, Law School, University of East Anglia, Norwich Research Park, Norwich NR4 7TJ, UK. Email: duncan.sheehan@uea.ac.uk. TT Arvind, Newcastle Law School, Newcastle University, Newcastle upon Tyne NE1 7RU, UK. Email: t.t.arvind@ncl.ac.uk
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Abstract

The aim of this paper 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. First, 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 and 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.

Type
Research Article
Information
Legal Studies , Volume 35 , Issue 3 , September 2015 , pp. 480 - 501
Copyright
Copyright © Society of Legal Scholars 2015 

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