The Humanity of Private Law: A Review Essay, The Humanity of Private Law Part II: Evaluation. Nicholas J. McBride

Bogle, S. (2024) The Humanity of Private Law: A Review Essay, The Humanity of Private Law Part II: Evaluation. Nicholas J. McBride. Juridical Review, 2024(1), pp. 43-56. [Book Review]

Abstract

The Humanity of Private Law, Part II: Evaluation, which is under review here, follows on from the 2018 publication, The Humanity of Private Law, Part I: Explanation. Taken together, these books offer a comprehensive analytical and normative theory for English private law. Although McBride is circumspect and does not claim that his theory will explain other jurisdictions, it is certainly plausible that it would apply, if he is correct, to other legal systems influenced by English law, including, of course, Scotland. Moreover, no matter its merits or failures, which are discussed below, it is notable that McBride has tried to build his account of private law upon carefully argued philosophical foundations, including phenomenology, existentialism, and metaphysics, which he explores more fully in Part II. Yet this philosophical underpinning is well-combined with a reliable use of key precedents of English private law, a methodological commitment he began in Part I and continues in Part II. It is remarkable for this very fact alone. Whether for methodological reasons, preferences, or inhibitions, theorists of Anglo-American private law rarely dig as deeply as McBride to establish theoretical foundations while at the same time holding contemporary precedents in firm view. This may leave McBride vulnerable to criticism however, and traditional empirical philosophers may question a great deal of what he has to say. Despite this, the attempt itself is progress and shows how the subdiscipline of private law theory can mature beyond the underwhelming safety net of the dominant constructive interpretivism. In what follows, an overview of McBride’s project is offered before consideration of Part II specifically. Both books have been widely reviewed, and it is already evident that McBride has made his impact on the field. The aim here, then, is to examine what McBride has given to us by providing such a wide-ranging and searching account of English private law, and further to pose questions as to how a project like McBride’s proceeds. Because for as much as Part II suggests McBride is a Jeremiah of English private law, and arguably for related jurisdictions like Scotland, his project begins to demonstrate where progress could be made.

• Item Type: Book Reviews
• Status: Published
• Glasgow Author(s) Enlighten ID: Bogle, Dr Stephen
• Authors: Bogle, S.
• Subjects: K Law > K Law (General)
• College/School: College of Social Sciences > School of Law
• Journal Name: Juridical Review
• Publisher: Sweet and Maxwell
• ISSN: 0022-6785
• ISSN (Online): 2754-2106