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Private law oils the wheels of society

By Katy Barnett - posted Thursday, 22 January 2009

Since I’ve become an academic, I’ve become aware of an insidious belief. It is this: study of private law is just not sexy. I’m thinking here of contract, tort, restitution, property law and trusts. Such subjects are compulsory in undergraduate years, which never makes them look appealing. Equitable doctrines are probably the closest private law gets to “sexy”. But students still flock to international law and human rights subjects when they can make a choice. Perhaps I’m neurotic - but then I think of the fact that I am one of the very few people at my institution doing a PhD thesis in private law says something. I’ve been mulling over it for the last few weeks since I went to my private law conference …

Perhaps private law does not seem as important as other areas of law in the eyes of students. It doesn’t usually deal with life and death, incarceration, wars or international disputes. It doesn’t deal with the power of the State against the individual (unless the State is acting in its capacity as another individual). Importantly, perhaps, for those who want to “make a difference”, it doesn’t purport to save the world. Its principal role is simply to resolve disputes between private individuals.

However, I wish to rebut the above notions. I think private law is very important and interesting. It is an area of law which affects us all each and every day of our lives in a myriad of ways which we don’t even notice (unless things go wrong). It is the grease which oils the wheels of society. If the law of contract suddenly disappeared, we’d be lost, as we enter into multiple contracts every day (even that ticket you bought to get on the bus is a contract). If the law of property and tort no longer existed, someone would be able to come and drive your car away, and you would not be able to do anything about getting it back, even if you could use the criminal law to jail that person.


Private law gives people important rights. Sometimes, it distresses me that some are prepared to run roughshod over those rights. I wrote a few weeks ago of the dispute my friends had with the builder of their new house. Through reading the contract, I was able to confirm their belief that the builder had no right to demand the money for the house before having done the various things he needed to do according to the contract (and indeed, as it transpired, the house hadn’t been properly completed, so it was lucky they resisted his demands). The thing that worries me is that I can perfectly well imagine a scenario where the home owners did not have a lawyer friend living around the corner or the confidence to stand up to bullying, and they would have been ripped off and left with an unfinished and unsatisfactory house.

During my years as a court clerk, I often witnessed firsthand how important private rights are to people. Many of the most difficult to handle cases involved litigants in person (i.e. people who could not afford or did not want proper legal representation). The facts of the cases themselves were not often difficult. Indeed, they were often clear cut (e.g. person defaulted on mortgage, bank attempted to repossess house, person resisted attempt to repossess). The difficulty came from the fact that often the litigant did not accept that the bank had a legal right to take their house if they defaulted on their loan. They came to court with extraordinary conspiracy theories involving the invalidity of the Constitution, Freemasons, references to the Magna Carta and the Bill of Rights. Woebetide any person (judge or otherwise) who attempted to disabuse them of their conspiracy theory.

All I can conclude is that in some cases, taking away a person’s house or farm is something which goes so much to the core of their being that the attempt to take it makes them irrational and prone to use any excuse to resist repossession. My experience as a banking litigator acting for lenders has confirmed this impression tenfold. So private law rights can go to the core of a person’s identity, and losing those rights can affect a person very badly.

One of the things which created my disillusion with public international law was the realisation that many (if not all) countries totally ignore international law obligations when it is in their interests to do so. I cannot imagine anything more disheartening. Private law may “only” deal with private individuals, but at least the law with which I deal generally has an enforceable and real effect on society. I must confess that I find human rights law even more depressing than public international law: all these fine ideals, but so often the genocide has already been perpetrated or the political opponents have already been tortured, and the international community can’t do anything about it. Of course it’s an important area of study and interest: but personally, I couldn’t handle the potential for lack of practical impact.

I do think private law can “make a difference”, even though it might not seem like it at first. It doesn’t look flashy or exotic, but it is something that affects us all each and every day of our lives, whether we are aware of it or not. If doesn’t work properly, it can impinge on our individual rights with catastrophic effects. Bad private laws affect society generally in a negative way. It is also something which is enforceable and has practical ramifications for all in society. Therefore, I consider that the study, understanding and practice of private law is just as essential and exciting as any other area of the law, even if it doesn’t appear so at first. Hopefully my enthusiasm will convince a few of my students of this!

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First published in Skeptic Lawyer on August 4, 2008. This article has been judged as one of the Best Blogs 2008 run in collaboration with Club Troppo.

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About the Author

Dr Katy Barnett is a lawyer, blogger and lecturer at the University of Melbourne. She lives in Melbourne, Australia and blogs at Skepticlawyer.

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