THE PRIVATE LAW STATE.

• Author: Davis, Seth

What legal duties do states owe those subject to their power? Typically, we look to public law to answer this question, defining the powers and duties of governments through constitutional law, administrative law, and international law, which we distinguish from the private law of contracts, property, and tort. It was not always this way, however. Recently, moreover, scholars are again looking to private law doctrines, concepts, and techniques to think about the powers and duties of states. It is a particularly promising moment for private law thinking about the state. The emergence of the "new private law," as well as the "new legal criticism," have enriched conceptual analysis and normative debate in private law. Against this backdrop, scholars have turned to private law to think about the powers and duties of states in public law.

This Article, occasioned by a symposium on Evan Criddle and Evan Fox-Decent's groundbreaking Fiduciaries of Humanity, takes stock of the private law state. It offers a qualified defense of private law theorizing about state powers and duties. The defense is that private law provides a set of lawyerly techniques for principled normative judgment in a plural world. The qualification is that private law cannot itself determine the solution to normative problems that it itself contains. Thinking about the state in terms of private law offers a way of recapturing normativity for public law, that is, a way of developing a moral brief against conceptions that place state sovereignty outside the rule of law. This transformation is as much as cultural and political as it is doctrinal and conceptual. The project of the private law state would, therefore, be significantly enriched by a critical engagement with the culture of legal practice and the limits of its political vision.

Quelles sont les obligations legales des Etats envers les sujets soumis a leur pouvoir? En regle generale, notre instinct est de se referer au droit public pour repondre a cette question, en definissant les pouvoirs et les obligations des gouvernements par le biais du droit constitutionnel, du droit administratif et du droit international, que nous distinguons du droit prive des contrats, de la propriete et de la responsabilite. Cela n'a pas toujours ete ainsi, cependant. Recemment, les chercheurs se tournent de nouveau vers des doctrines, concepts et techniques issus du droit prive pour reflechir aux pouvoirs et aux devoirs des Etats. Nous sommes dans un moment qui semble particulierement prometteur en ce qui attrait a la reflexion sur le droit prive et son rapport a l'Etat. L'emergence de ce >, ainsi que de la >, ont enrichi l'analyse conceptuelle et le debat normatif en droit prive. Dans ce contexte, les specialistes se sont tournes vers le droit prive pour reflechir aux pouvoirs et obligations des Etats en droit public.

Cet article, presente a l'occasion d'un symposium sur le livre avant-gardiste d'Evan Criddle et d'Evan Fox-Decent, Fiduciaries of Humanity, dresse im bilan de cette idee d'Etat de droit prive. Il offre une defense qualifiee du droit prive theorisant sur les pouvoirs et les devoirs de l'Etat. C'est une defense qui postule que le droit prive fournit un ensemble de techniques juridiques permettant un jugement normatif fonde sur des principes qui s'accorde aux exigences d'un monde pluraliste. Cette qualification fait la proposition que le droit prive ne peut pas lui-meme determiner la solution aux problemes normatifs qu'il contient. Penser l'Etat en termes de droit prive offre un moyen de retrouver la normativite du droit public, c'est-a-dire un moyen d'elaborer un mandat moral contre ces conceptions qui placent la souverainete de l'Etat hors de la portee de l'Etat de droit. Cette transformation est autant culturelle et politique que doctrinale et conceptuelle. Le projet de l'Etat de droit prive s'en trouverait donc considerablement enrichi par un engagement critique en faveur de la culture de la pratique juridique et des limites de sa vision politique.

1. The State as a Subject of Private Law A. Private Law Applied to the State B. The Problem of Normative Fit II. Public Law as Private Law A. Analogizing the State to a Subject of Private Law B. Problems with the, Analogy III. Private Law Concepts and Public Law Problems A. Ad Hoc Conceptual Borrowing Distinguished B. Fiduciaries of Humanity? C. The Problem of Indeterminacy 1. The Foundations of die State's Authority 2. The Distinction Between the State's Mond Duties and Its Legal Duties 3. The Scope and Content of the State's Duties 4. To Whom Duties Are Owed D. Rethinking Problems hi Private La w and Public Law Together IV. The State and the Morality of Private Law A. Jurisprudential Crisis B. Looking to Private La w for Public Law's Moral Foundation C. The Limits of a (Private) Lawyer's Mindset About Politics Conclusion Introduction

   Why do we have states? Today most of us agree that state sovereignty involves representative authority. A state represents its people. But there are deep disagreements about what that representative authority is for. Some of us talk about democracy. Others are worried about domination. Still others are focused on the gross domestic product. Most of us are worried about these things and many others. Truth be told, we have many intuitions about what democracy means, what justice is, and why money matters; we know there are objections to these intuitions; and we want our states to be (and to do) many things, some of which are at odds with each other.

   What legal duties, then, do states owe those subject to their power? Typically, we look to public law to answer this question. On the domestic plane we define the powers and duties of government through constitutional and administrative law, distinguishing these bodies of law from the private law of contracts, property, and tort, all of which are concerned with the rights and duties of private actors in their relations with one another. And on the international plane we turn primarily to public international law and, depending upon how one defines it, secondarily to private international law. (1)

   It was not always this way. In 1927, for example, Hersch Lauterpacht argued in Private Law Sources and Analogies in International Law that we might understand the law of nations through private law analogies. (2) To understand treaties, he looked to contract law. For territory, he examined property. Tort law shed light on the law of state responsibility. (3)

   The private law state is enjoying something of a renaissance in legal theory, as scholars again look to private law doctrines, concepts, and techniques to think about the powers and duties of states. Public fiduciary theory, for example, looks at the state through the lens of fiduciary law, that body of traditionally private law that springs from equity and enjoins those entrusted with discretionary authority over another's interests to act loyally and carefully. (4) The subject of this symposium, Evan Criddle and Evan Fox-Decent's groundbreaking Fiduciaries of Humanity: How International Law Constitutes Authority, applies public fiduciary theory to think through the duties of states under international human rights law. (5) The publication of Fiduciaries of Humanity offers an opportune moment to take stock of the private law state. (6)

   It is a particularly promising moment in which public lawyers might turn to private law to think about state sovereignty. The emergence of the "new private law", (7) as well as the "new legal criticism", (8) have enriched conceptual analysis and normative debate in private law, offering new (or, depending upon one's perspective, reviving old) ways of thinking about contract law, fiduciary law, property law, and so on. The new private law's insistence that "law is distinct from politics" (9) may promise a corrective to a jurisprudential crisis in public law, which, many commentators worry, is looking more and more like raw politics and the language of power.

   There are several objections, however, to looking to private law to solve outstanding problems in public law. One objection is that the relationships involved in private law do not map onto those in public law. (10) Another fundamental objection is that searching for private law solutions to public law problems is superfluous because doing so simply restates those problems in new terms. (11) A third objection is that the possibility of borrowing from private law doctrines or concepts to solve problems in public law is unremarkable and uninteresting, because private law and public law are not distinct categories. Or, to take an altogether different view, perhaps this sort of borrowing is remarkable and interesting not because it determines solutions to problems in public law but because the ideologies of private law lend themselves to legitimating assertions of public power. (12)

   In this Article, I want to take stock of the use of private law, particularly fiduciary law, to think about the powers and duties of states. I will offer a qualified defense of private law theorizing about state powers and duties. The defense is that private law provides a set of lawyerly techniques for principled normative judgment in a plural world. The qualification is that private law itself cannot determine the solution to normative problems that it itself contains.

   After all, what is true of states is also true of private law: Both are objects of fundamental normative debates. Securing equal freedom and security for everyone through rights is an important reason we have private law. But that is not the only reason. We want markets, and so we have private law. We need some way of coordinating behavior, and so we have private law. We want to identify someone who is responsible for deciding how resources will be used, and so we have private law. We want to have control over our choices (and, if we are being honest, other people's choices too), and so we...