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Two questions for private law theory

ABSTRACT This article claims that private law theorists ought to bear in mind the distinction between wholesale questions about the best interpretation or justification of legal institutions, and retail questions about their internal operation – in other words, the distinction between questions about legal institutions and questions within them. This distinction has been obscured in part of recent private law theory, as recent discussions involving monism, pluralism, and private law adjudication show. The article explores these theoretical discussions and identifies some of their shortcomings. It also argues that, given the institutional character of private law, the distinction is plausible, and that – while it already underlies some contemporary discussions – it should be given much more salience, given the important contribution it could make to an adequate methodology in private law theory.