My Numerous Detours – Toward Private Law as Society’s Constitution

Abstract

Abstract The author responds in two ways to the contributions in this special issue dealing with aspects of his scholarly work. In his first, more general response, he traces the influences that various institutions and individuals exerted on him and were reflected in his work on private law theory. In retrospect, he understands both his many years abroad and his involvement with extra-legal disciplines, especially systems theory and sociology of law, as a search for the identity of private law in foreign legal systems as well as in foreign disciplines. At the end of this search stands the concept of societal constitutionalism. The author understands private law as society’s constitution, more precisely: as the legal constitution of the self-governance of a variety of social systems. In a second, more specific response, the author deals with some of the questions raised in the various contributions to the special issue. From the perspective of both sociology of law and legal doctrine, the author addresses problems of society’s constitution that arise, on the one hand, outside the borders of the nation-state in transnational political processes and, on the other hand, outside the institutionalized political sector, in the "private" sectors of world society. They revolve around the theoretical and practical potential of societal constitutionalism: how, in non-state institutions, the new power centers of society, particularly in the emerging socio-digital institutions, private law can set the normative conditions for fundamental rights, the rule of law, democratic participation, and, increasingly today, ecological sensibility.