Private Law Concepts Research Articles

Normative und rechtsstaatliche Kapitalismuskritiken und ihre Verdrängung bei Marx

AbstractThe essay is a critical revision of various of Marx’s approaches in his analysis of capitalism in “Das Kapital”. One can distinguish immanent, normative critiques from transcendental and objectivistic ones. The review of the normative standards used in each case leads to the questions of how Marx determined and used the relationships of justice and law and the capitalist mode of production. Orthodox Marxist views (most recently C. Menke) claim that Marx did not criticise capital as unjust and understood the law of capital only as private law that stabilised domination. Against this, it is shown that he certainly bases his “critical presentation” on an (almost Kantian) constitutional (“rechtsstaatliches”) concept of private law and public law. Thus the “popular prejudice” of “human equality”, defined by Marx as an epochal and systematic condition of the capitalist exchange of goods, becomes apparent as a covert reference to the historical (America, French Revolution),public-lawdeclarations of human rights. And in the chapter “Struggle for the length of the working day” Marx presents the decisions of this dispute between “equal rights” first and foremost in the systematic historical actions of the constitutional powers (legislature, executive and judiciary). At the same time, however, he attempts to ironise and defame this public-law and deliberative, democratic dispute and then to misinterpret it as a violent “civil war”. Because Marx in his further presentation ignores this legal-democratic dispute, including a potential human-rights critique and (possible!) future regulation of capitalism, focussing instead on objectivist concepts of history and development, he can only insufficiently grasp the still challenging relationship between democracy and capitalism.

Book Review: Primary EU Law and Private Law Concepts; Private Law and the Internal Market, edited by Hans-Wolfgang Micklitz, Carla Sieburgh

Book Review: <i>Primary EU Law and Private Law Concepts; Private Law and the Internal Market</i>, edited by Hans-Wolfgang Micklitz, Carla Sieburgh

THE INFLUENCE OF PRIVATE LAW ON THE DEVELOPMENT OF THE WORLD AND RUSSIAN LAW AND ORDER: MODERN FORMS AND TRENDS

Introduction: modern legal science and practice is aimed at the need to ensure and develop law and order both at the level of individual countries and at the level of the entire world community as a whole. At the same time, it is obvious that private-law relations occupy a significant place in the structure of legal relations. That is why it seems interesting to examine the main trends in the influence of private law on the development of law and order as such, to identify the main forms of such influence, to determine the directions for the development of private law and to make recommendations on the possibilities for improving private-law regulation on a national and international scale. Methods: the system method was chosen as the determining method for studying the trends in the development of basic private law institutions from the standpoint of the norms of Russian and international legislation. The choice of the system approach as the determining method of investigation is due to the fact that it is this method that makes it possible to reveal the integrity of the developing object, which is the rule of law, to reveal the interrelationships of individual institutions and private law rules with each other and the legal system as such. Analysis: the study examined the main trends in the development of private law in the current economic and political environment, in addition to aspects of the general part of civil law, including explored the scope of intellectual property, private-public partnerships, corporate relations. The problems of stimulating innovative development by means of private law were touched upon, as well as recommendations on the use of private law mechanisms to protect the national interests of the Russian Federation. Results: in the course of the study, the authors come to the conclusion that it is necessary to formulate a clear and well thought out concept of private law, which should combine public and private interests in the legal regulation of public relations. The creation of such a concept, oriented to practical application, should become the main task of modern civil science.

What Has Private Law Ever Done for Justice?

This article identifies and explains an important and distinctive way in which a traditional set of private law rules, doctrines, and concepts (ie those that allocate particular goods to particular individuals) relate to distributive justice. Such rules, doctrines, and concepts are instrumentally valuable vis-à-vis a just allocation of goods in two different ways. On the one hand, and less controversially, they sometimes possess the ability to cause (or contribute to causing) such states of affairs into being. The article shows that they also discharge a constitutive function in relation to distributive justice, one that is required by conceptions of distributive justice that are centred around allocation-unbound justificatory criteria (which constitute the vast majority of the available accounts of distributive justice).

What Has Private Law Ever Done for Justice?

This article identifies and explains an important and distinctive way in which a traditional set of private law rules, doctrines, and concepts (i.e. those that allocate particular goods to particular individuals) relate to distributive justice. Such rules, doctrines, and concepts are instrumentally valuable vis-a-vis a just allocation of goods in two different ways. On the one hand, and less controversially, they sometimes possess the ability to cause (or contribute to causing) such states of affairs into being. The article shows that they also discharge a constitutive function in relation to distributive justice, one that is required by conceptions of distributive justice that are centred around allocation-unbound justificatory criteria (which constitute the vast majority of the available accounts of distributive justice).

The Formation and Development of Legislation on Ukrainian Private Law

The paper analyzes the case of legislation and case practice in Ukraine, in particular the trends in thecurrent process of codifying international private law. The analysis of international private law documentsapproved for the past 35 years internationally shows that the majour forms (ways) of modern codificationsof International Private Law are the following: 1) introbranch form - within the general codification of civillaw; 2) interbranch form, the codification o civil law includes a special part with the majour norms and institutesof general and special parts of international private law; 3) autonomous branch form - issuing aspecial law applying to codifying international private law; 4) complex autonomous form - issuing a law orcode combining the principles and conflict of law norms of international Private Law as well as the provisionsof international civil process. Ukraine chose a large-scale codification of international private law, i.e.approved a complex autonomous law On International Private Law (enacted as of September 1, 2005),applicable to the choice of law and civil conflicts concerning foreign law and order. This way of codifyinginternational private law is typical of the pluralist concept of private law dominating in Ukraine currently.The law materialized the idea of converging formalist and pragmatic approaches to conflict of law regulation.The case practice for the period of the applicable law since 2005 has shown its relevance and demonstratedinteresting examples of its application. Between 2010 and 2013, the law of 2005 experiencedsignificant changes, which in turn may not be considered as a reform of Ukrainian international private law.The paper concludes that currently, the Ukrainian law on international private law requires updating due tothe development of European conflict of law regulation and formation of new conflict of law approaches.

New Study on the Principle of Statutory Tax: From Absolutism to Relativism

Modern civilization is based on the principle of statutory tax and the principle of a legally prescribed punishment for a specified crime. The principle of a legally prescribed punishment for a specified crime is the protection of personal rights, while the principle of statutory tax is the protection of property rights. In the academic circles, the research on the principle of statutory tax places more emphasis on the protection of the property rights of citizens, but ignores the protection of the state financial power. The development of modern property law has recognized that the property right is not a pure concept of private law, but a dialectical unity of the property rights of citizens and public property rights. In this sense, the principle of statutory tax as the cornerstone of the modern state and civilization is an important principle of guaranteeing a dialectical unity of public property rights and the property rights of citizens. In addition, how to implement the principle of statutory tax is not only a matter of legislation, but also a practical problem. It is necessary to analyze tax index and other practical issues in tax practice to prevent from a serious discrepancy between theory and practice and actually achieve dual protection of public property rights and the property rights of citizens. Therefore, traditional principle of absolute statutory tax cannot completely adapt to the needs of modern economic society, and should be replaced by the principle of relative statutory tax.

Legal Expressions of Urgency in Comparative Perspective: The Translation of Temporal Adverbials in the DCFR

Most comparative studies on the difficulties of legal translation focus on the “grand” terms and concepts of private law (e.g. contract, damage, property). Yet the grammar of legal discourse is also built on “small words” which are deeply rooted in a particular legal culture. One example are adverbials of time or expressions of urgency, as they may be referred to, which are used in a number of legal provisions.This paper explains the role of temporal adverbials in legal texts and analyses the usage of such terms in the English version of the DCFR and tries to develop a taxonomy of expressions of urgency. It evaluates the translation of temporal adverbials in the French and German version of the DCFR and underlines the role of comparative law for legal translation.

Project Investment and Development

Project Investment and Development

The Procedural Side of Legal Globalization: The Case of the World Heritage Convention

The conceptual premise of Global Administrative Law is that, in order to cope with globalization, states’ right to regulate has been increasingly entrusted to global authorities, adopting rules and decisions which are best conceptualized as administrative regulation.Therefore, GAL is an answer to vertical and substantial institutional and legal globalization and it develops in order to avoid the risk of an administrative regulation (which goes global) unregulated by administrative law (which remains domestic).This paper, however, takes a slightly different approach to GAL. Focused on the impact of global regulatory regimes on domestic regulation, it argues that those regimes change the very nature of domestic rules and decisions as long as they are adopted according to decision-making processes open to the participation of external subjects, representing the interests of different political communities.From this perspective, GAL, conceived as global law regulating domestic regulation, is not an answer to vertical and substantial institutional and legal globalization, and contributes to the development of a horizontal and procedural path to legal globalization.The paper maintains this point by examining a single global regulatory regime -- namely the World Heritage Convention regime -- and, particularly, by considering three specific cases, referring to three different domestic administrative decisions, to whom that Convention has been applied. The World Heritage Convention regime -- as well as many other global regulatory regimes -- places on domestic authorities the burden of taking into account the global interests affected by their decisions. This is a typical procedural burden, drawn from the heritage of (domestic) administrative law. Thus, legal globalization progresses along a procedural path and according to administrative law (rather than private law) concepts.

Constitutional Reasoning in Private Law: The Role of the CJEU in Adjudicating Unfair Terms in Consumer Contracts

This article explores the—often controversial—role of the CJEU as an interpreter of Directive 93/13/EEC on unfair terms. A fundamental problem that any modern system of private law must address is how to combine two types of provisions: those that are intended to facilitate private ordering through voluntary transactions, and those setting out certain mandatory terms that are intended to protect vulnerable consumers against risks inherent to free market transactions. This article argues that, in response to the failure of various legislative initiatives, the Court's jurisprudence has acquired both a regulatory dimension and a constitutional dimension. The emergent judicial regime illustrates an important departure from a rule-based conception of private law, based on private autonomy as a stand-alone value, towards an innovative conception that extends proportionality analysis into substantive private law but avoids one-sided outcomes

The Tradition and Precedent-based Approach Responsible for the Specificity with which Some Universal Concepts of Private Law are Discussed in the English System

SUMMARY The paper discusses the extent to which it is possible to find the right Polish equivalents of such English concepts as acquisitive prescription (in property law), entitlements of the dependents (in the law of inheritance) and commercial impracticability (in the area of obligations). Although the general idea of the discussed concepts may easily be grasped and smuggled into such Polish institutions as zachowek, zasiedzenie (legitim), and rebus sic stantibus, deeper insight into the description of these concepts in the two legal systems discloses many differences in detail.

Constitutional Reasoning in Private Law: The Role of the CJEU in Adjudicating Unfair Terms in Consumer Contracts

This article explores the - often controversial - role of the CJEU as an interpreter of Directive 93/13/EEC on unfair terms. A fundamental problem that any modern system of private law must address is how to combine two types of provisions: those that are intended to facilitate private ordering through voluntary transactions, and those setting out certain mandatory terms that are intended to protect vulnerable consumers against risks inherent to free market transactions. This article argues that, in response to the failure of various legislative initiatives, the Court's jurisprudence has acquired both a regulatory dimension and a constitutional dimension. The emergent judicial regime illustrates an important departure from a rule‐based conception of private law, based on private autonomy as a stand‐alone value, towards an innovative conception that extends proportionality analysis into substantive private law but avoids one‐sided outcomes.

The Invention of Law in the West, by Aldo Schiavone, translated by Jeremy Carden and Anthony Shugaar

The Invention of Law in the West, by Aldo Schiavone, translated by Jeremy Carden and Anthony Shugaar. Cambridge, Massachusetts, Harvard University Press, 2012. x, 624 pp. $49.95 US (cloth). In this book, the very learned Aldo Schiavone tells the story of how the Roman jurists, over a period of centuries, created, discovered, or--as the title would suggest --invented law, as law is understood in the West. The story is both fascinating and profoundly important. The creation of a legal system occurred only twice in the West, and it happened first in Rome. Roman law still lives today. All over the world, and especially on the Continent, there are legal systems known as civilian, a label that tells us that their basic private law--the law of property, contracts, and of the family--is descended from the ius civile, the Roman law for Roman citizens. And Roman law lives even in legal systems that descend from another invention, which took place in London over a thousand years later. The basic grammar of private law in all Western systems--the organizing concepts of ownership, obligation, debtor and creditor, wrongful harm, the enforcement of promises, and so on--was created by the Roman jurists. How this happened, and why it happened, are questions of enduring significance, and Schiavone's book makes an important contribution to our understanding. The development and evolution of the law generally takes place over very long periods of time. Milsom warned that the importance of such long periods is one of the reasons why it is easy to misinterpret legal history [see S.F.C. Milsom, A Natural History of the Common Law (New York, 2003), pp. xix-xxii]. Moreover, in the study of how Roman law came to be, it must be remembered that the most interesting things .about Roman law are not the parts that are tied to the particularities of Roman society. The law of slavery, the patriarchal nature of Roman family law, the physical recourse that a creditor could have against the body of his debtor: these are of interest only to the specialist. The elements that are of interest to every jurist are the ones that turned out to be timeless, and relevant to every Western society: the basic concepts of private law that have already been mentioned. Schiavone is fully aware of both of these issues. His project deserves praise in that it does not fall into a trap of merely identifying law with power, and thence of trying to understand the evolution of Roman law as the deployment and development of this power. Roman law was not just politics by another name (for example, pp. 172-73, 200); a system of that kind could not possibly have had the subsequent history--we might say, the subsequent success all over the world--that Roman law has had. Schiavone rightly takes a long view of his subject matter, starting at the very foundation of Rome. He focuses on crucial stages in the development of the law, from a mysterious normative order that was a part of religious belief, to an abstract form of normative reasoning that is recognizable to the modern jurist of any tradition. These stages still resonate today: articulation of reasons, justifications for rules and for the outcomes of cases, and the concomitant abstraction of reasoning from particular disputes that leads to the evolution of powerful and general normative ideas like obligation and ownership. …

Risk and Strict Liability: The Distinct Examples of Germany, the US and Russia

Enlightenment, natural law and economic liberalism engendered the grand concept of modern private law. Nearly simultaneously the ongoing process of industrial revolution paved the path into another modernity. Its new paradigms were technical risks, enterprises and insurance. Insurability of losses caused by risky commercial activities created the demand for ‘stricter’ forms of liability beyond fault. The paper presents three different answers to these challenges to civil responsibility. Germany is but a prominent example for the continental EU member states with its mixed system of social insurance, special legislation on strict liability and general fault liability. The US adheres to the negligence system with only marginal corrections. The liability law of the new Russian civil code combines the French and German legal legacy with the revolutionary ideas of the 1922 code leading to two general clauses of quasi-strict and strict liability.

Consistent: the Convention on the Protection of the Underwater Cultural Heritage and the United Nations Convention on the Law of the Sea

Although the field of comparative tax law has achieved greater prominence in legal studies, its methodology is not yet adequately developed. In general, work in comparative tax has not focused adequately on specific features of tax law. This paper proposes a comparative methodology specifically designed to make use of this unique relationship between tax law and private law. Based on a historical overview of comparative tax law and its methodology, it proposes the adoption of the numerical concept of elasticity, regularly used in mathematics and economics, for tax comparisons. This numerical tool, which measures how changing one variable affects others, seems to be particularly suitable to analyse the interaction of tax provisions with underlying private law concepts in a systematised manner. Used as a thought pattern and a foundation for future work, such a numerical analysis is able to identify interrelations between tax law and its private law environment that are likely to be overlooked by classical text-based comparisons. This can aid legislative reform, as it reduces its ‘trial- and-error’ aspect. At the same time, the numerical approach disassociates comparative analyses from the impreciseness of text-based data.

Numerical Methodology in Comparative Tax Law: the Mathematical Model of Elasticity as a Thinking Model for Legal Comparisons

<section class="abstract"> Although the field of comparative tax law has achieved greater prominence in legal studies, its methodology is not yet adequately developed. In general, work in comparative tax has not focused adequately on specific features of tax law. This paper proposes a comparative methodology specifically designed to make use of this unique relationship between tax law and private law. Based on a historical overview of comparative tax law and its methodology, it proposes the adoption of the numerical concept of elasticity, regularly used in mathematics and economics, for tax comparisons. This numerical tool, which measures how changing one variable affects others, seems to be particularly suitable to analyse the interaction of tax provisions with underlying private law concepts in a systematised manner. Used as a thought pattern and a foundation for future work, such a numerical analysis is able to identify interrelations between tax law and its private law environment that are likely to be overlooked by classical text-based comparisons. This can aid legislative reform, as it reduces its ‘trial- and-error’ aspect. At the same time, the numerical approach disassociates comparative analyses from the impreciseness of text-based data. </section>

The Public Dimension of Private Property

In this Essay I hope to explain the sense in which private property is indeed private and the way in which it is inevitably public. My starting point for this inquiry is the recent reinvigoration of the Kantian conception of private law in general and of property more specifically. This significant neo-Kantian enterprise avoids Locke’s most dubious claims and yet presents the most vigorous defense of the conceptual separation of private and public. Neo-Kantians helpfully highlight the important correlativity characteristic of private law, entailed by the bipolar structure of private law, which has significant implications for our understanding of private property. But the integrity of private law does not require the neo-Kantians’ more ambitious claims of an airtight distinction of private and public law and the exclusion of any collective or public value from our understanding of property. Quite the contrary: in order for the correlativity inquiry to start off — in order for it to be intelligible — we need to determine what exactly is the content of the parties’ rights, a determination that necessarily invokes our public values. Not every such value can, however, qualify for the task: by and large only values that participate in the regulative principle that underlies the property institution at issue — that is: only values that inform our ideal vision of the interpersonal relationship at hand regarding the pertinent resource — can be legitimately taken into account. The diversity of these regulative principles in property and their reliance on our public values need not be confusing and should not be considered demeaning to the private nature of property. Rather, properly understood, this diversity is the precondition for property’s crucial role in supporting diverse forms of interpersonal interaction and thus diverse forms of human flourishing. Thus, this public dimension of private property is, at the end of the day, what enables property law to adequately recognize and promote the autonomy-enhancing function of pluralism and the individuality-enhancing role of multiplicity.

An ineluctable minimum of natural law: François Gény, Oliver Wendell Holmes, and the limits of legal skepticism

During the first few decades of the twentieth century, legal theory on both sides of the Atlantic was characterized by a tremendous amount of skepticism toward the private law concepts of property and contract. In the United States and France, Oliver Wendell Holmes and François Gény led the charge with withering critiques of the abuse of deduction, exposing their forebears’ supposedly gapless system of private law rules for what it was, a house of cards built on the ideological foundations of laissez faire capitalism. The goal was to make the United States Constitution and the French civil code more responsive to the realities of industrialization. Unlike the other participants in this transatlantic critique, François Gény simultaneously insisted on the immutability of justice and social utility. His “ineluctable minimum of natural law” would guide judges and jurists toward the proper social ends, replacing deduction with teleology. The problem was that nearly all of Gény's contemporaries were perplexed by his conception of natural law, which lacked the substance of the natural rights tradition of the eighteenth and nineteenth centuries and the historicist impulse of the early twentieth. No one was more perplexed than Oliver Wendell Holmes, whose more thoroughgoing skepticism led him to see judicial restraint as the only solution to the abuse of deduction. The ultimate framework for this debate was World War I, in which both Holmes and Gény thought they had found vindication for their views. Events on the battlefield reaffirmed Gény's commitment to justice just as they reignited Holmes’ existential embrace of the unknown. In a sense, the limits of their skepticism would be forged in the trenches of the Great War.

The procedural side of legal globalization: The case of the World Heritage Convention

The conceptual premise of global administrative law (GAL) is that, in order to cope with globalization, the right of states to regulate has been increasingly entrusted to global authorities, which adopt rules and decisions best conceptualized as administrative regulation. Therefore, GAL is in response to substantial, vertical institutional and legal globalization, and it develops in order to avoid the risk of an administrative regulation (which goes global) unregulated by administrative law (which remains domestic). This paper, however, takes a slightly different approach to GAL. With a focus on the impact of global regulatory regimes on domestic regulation, I argue that those regimes change the very nature of domestic rules and decisions as long as they are adopted according to decision-making processes open to the participation of “external” subjects, representing the interests of different political communities. From this perspective, GAL contributes to the development of a horizontal and procedural path to legal globalization. This point is demonstrated by examining a single global regulatory regime—the World Heritage Convention—scrutinizing three specific cases, each referring to three different domestic administrative decisions to which the convention has been applied. The World Heritage Convention—as well as many other global regulatory regimes—places on domestic authorities the burden of taking into account the global interests affected by their decisions. This is a typical procedural burden, drawn from the legacy of domestic administrative law. Thus, legal globalization progresses along a procedural path and in accordance with administrative law (rather than private law) concepts.