Smart capable personal assistants can be very useful. You give them vague and inconsistent instructions, and they “do what I mean” (DWIM), fixing your mistakes. If you empower them to control your interactions, you need less fear mistakes messing up your interactions.
In addition to arbitration agreements (already mentioned) another example (albeit rudimentary) of private law in practice are covenants in homeowners' associations. But Robin, I take your point that these are nowhere near the scope of what you have in mind when you say "private law"
Individuals don't need law which is almost entirely interpersonal.
To a degree any employer or educational institution has a sort of private law. Generally the stiffest punishment they can hand out is banishment from the community, but they've got wide latitude in setting the rules. One notable example has been the current Dept. of Education pressuring private colleges to adopt a lower standard of proof for determination of sex crimes.
But if the religious group has them sign some kind of bonkers contract when they join the group, and our government will enforce that contract, that might be quite difficult.
Would the government enforce a contract for indentured servitude if the individuals chose to opt out of the 13th Amendment?
But is Robin necessarily committed to allowing people to opt out of any law? Is the only reason for outlawing indentured servitude to protect people from their own mistakes? No - slavery was abolished in part because it was a competitive threat to free labor.
Private law seems to happen in practice, and indeed maybe it should happen more frequently.
Stop a moment and consider. How many times in our lives have we each consulted a third-party referee to decide about some conflict we're having with someone? Now how many of those third-party referees were officers of the judicial system?
Arbitration has already been mentioned.
I don't know if it's technical "arbitration", but note that many of the details of divorce agreements are often brokered through a third party.
Two other broad examples are the bylaws of a club, and the official rules of a sport. In both cases, even if you go to court, the court is going to defer heavily to the private laws you implicitly agreed on by becoming a member of the club or a participant in the sport.
Can we formulate that concept without using the idea of 'we'? What's an individualist to do?
It's hard to make private law work because for it to apply, all the people involved have to be subject to the same private law.
Traditionally, this could be applied to family law, with family law differing based on one's religion or ethnicity. But that only works because each religion or ethnicity was endogamous.
The one modern application I know of is the arbitration clauses in contracts. But in most cases, those are adhesion contracts, and the clause is optimized by one side to minimize its liability. That's not a good example to argue that private law should be used more.
I think this related. I was thinking the other day that to solve the problem that sales taxes put in-state businesses at a disadvantage, the states could offer a fraud protection service to all people who make their out of state purchases using states payment system that collects the sales tax. It would be in keeping with Government helping citizens avoiding mistakes. It is arguably part of what you get when you buy local in the states are of regulation.
In that article, Robin brings up a contract with Haliburton where she was raped and the contract required that she settle it with arbitration. I thinki that counts as a contract of adhesion, although Robin was vague about whether he thinks that contract should be considered legal in his ideal world.
Historically religious groups are the power users of private law. People often decide that they wish to leave a religious group. But if the religious group has them sign some kind of bonkers contract when they join the group, and our government will enforce that contract, that might be quite difficult. And people would be perfectly willing to make some sort of costly public declaration upon joining a new church. Should that be fine?
Aren't international companies allowed to specify in the contract which country will arbitrate any disputes? The same if contracting with someone from another country?
Which leads me to suspect your interest is not your own law, which is as common as any club or organization, but the means of forcing others not under your law to deal with you under your law, the privilege of the powerful, but why would anyone want to unless you were indeed powerful. All you must do is become powerful. No shortcuts for that though.
I think he's just suggesting that the rule not be applied to contracts of adhesion.
Religious denominations have different laws and we can decide which ones to belong to and follow and which to leave but that doesn't require civil law to accept people can't leave once entered. While there is a range for such law which generally falls under communes or less kindly, cults, it has little use when it comes to dealing between people of different communities, and even less when most interactions are between those of different communities. No one else is going to be interested in dealing with yours unless it is a large, powerful, or close knit one they want to deal with or join. These are often incompatible with democracy.which does require a common basis.
Hanson deals with this problem in his "private law" link.
Meta-laws limiting choice of law have little to do with preventing mistakes. Casting it in this light keeps you from confronting the real reasons. One is limiting the effects of unequal bargaining power. Another is the inefficiency (and potential inaccuracy) involved in judges having to learn different sets of laws.