History, Contingency, and Interpretive Private Law Theory

Interpretive private law theory has a history problem. Its interpretive objects—tort, contract, equity, the trust, etc.—are products of historical contingency and doctrinal accident. And yet, private law theorists ascribe to them unifying purposes and animating principles. This essay sharpens this inchoate tension into two skeptical arguments: first, that historically contingent categories are unworthy of interpretation, and second, that genealogical accounts render ascribed purposes explanatorily inert. I answer both skeptical challenges by analogy to the philosophy of science’s distinction between the context of discovery and the context of justification. Just as the causal history of a scientific truth is separable from what justifies believing it, the genealogy of legal doctrine is separable from its present normative attractiveness.