Private Law Doctrine Research Articles

Law's Suffering

Recent scholarship in areas of the law of loss (especially crime and tort) suggests that the law needs to pay more attention to pain. This essay examines legal redress for loss in various doctrines of private and public law in order to map the relation of law and suffering and explore how they shape each other. Law seems to compensate for the lack of law, for 'unjustified' or 'unusual' suffering, but not for experiences of suffering 'as such.' Is law wrong to do so? Is there some other pre-normative account of suffering to which law should respond? Can 'raw' suffering cut through legal language? Part one sets out the relation between suffering and wrong in the law. Part two examines how the law often elides the normative with the normal, the 'wrong' with what is unexpected. Part three suggests that the suffering that is the absence of the 'normal' is linked with our need for reliability and is a defense against our finitude. Part four explores the example of torture, the paradigm of lawless suffering 'for nothing' that undermines lawfulness itself. Part five discusses the aspects of 'suffering' or hurtful loss that are left out of law. I conclude that suffering in law is normative all the way down, resistant to any simplistic reductionism or unmediated 'experience' of the other. Suffering, moreover, is intimately tied in law to the frustration of our 'will to law.' The 'will to law,' a human desire for reliability and pattern that protects a finite being from a chaotic world, seeks to normalize the unusual and the aberrant. Even when law tries to compensate for 'actual' suffering, and tries to take suffering as a scientific object, the 'will to law' makes empirical suffering or pain difficult to measure, because sufferers adapt to the familiar, routine, and normal, and the familiar is not experienced or understood as suffering. Sufferers’ own 'will to law' makes the quotidian into the lawful and justified, thereby obscuring (or perhaps alleviating) their own suffering. Finally I look at forms of lawful pain or loss that are left unaddressed and therefore unredressed by the law’s conception of suffering: 1 normal 'background' pain or loss, 2) lawful pain or loss 'for a good reason,' and 3) the loss of our openness to change and disruption that our 'will to law' itself causes, and that is a loss of the capacity for suffering itself.

Aggregation and Law

If a plaintiff brings two claims, each with a 0.4 probability of being valid, the plaintiff will usually lose, even if the claims are based on independent events, and thus the probability of at least one of the claims being valid is 0.64. If a plaintiff brings two independent claims, and each of them is too weak to justify a remedy, the plaintiff will usually lose, even if the claims are jointly powerful enough to justify a remedy. Thus, as a general rule courts refuse to engage in what we call factual aggregation (the first case) and normative aggregation (the second case). (We also identify other forms of aggregation.) Yet we show numerous exceptions to this rule in private and public law. Notably, in public law the hybrid rights doctrine permits courts to aggregate two weak constitutional claims as long as one involves free exercise of religion. In private law, certain tort and contract doctrines also permit aggregation. We criticize the courts’ inconsistent approaches to aggregation, and propose conditions under which courts should (and should not) aggregate.

Sir Hersch Lauterpacht, The Function of Law in the International Community

Almost eight decades after its publication in 1933, Oxford University Press recently republished Hersch Lauterpacht's book, The Function of Law in the International Community, with a new preface by Martti Koskenniemi that situates the work within the German legal tradition.1 The Function of Law is a significant work for several reasons and its renewed accessibility therefore very much welcomed. First, the work is an impressive piece of scholarship, regarding the stringency of argumentation and depth of analysis. In his attempt to dispel arguments for the non-justiciability of certain international disputes, in particular due to their allegedly political nature, and in making the case for compulsory adjudication, Lauterpacht not only surveyed the existing provisions on third-party dispute settlement in numerous arbitration treaties, the Covenant of the League of Nations, and the Statute of the Permanent Court of International Justice; he also analysed a vast amount of state practice and case law, as well as doctrines of municipal private law, such as �abuse of rights� or �rebus sic stantibus� � always informed by the existing international law literature and works on Roman, Italian, German, French, and English law. Last but not least, Lauterpacht tackled the fundamental question of the philosophy of international law, the question as to the concept of international law, the origin of international law's normativity. Criticizing the doctrine of co-ordination as exposed by Georg Jellinek and Erich Kaufmann, as well as Heinrich Triepel's doctrine of international legal obligation as based on law-making agreements between states, he agreed with Hans Kelsen that the binding force of law could not be derived from either the individual or common will of states, but instead originated in an �

Autonomy and the Unintended Legal Consequences of Emerging Neurotherapies

One of the ethical issues that has been raised recently regarding emerging neurotherapies is that people will be coerced explicitly or implicitly in the workplace or in schools to take cognitive enhancing drugs. This article builds on this discussion by showing how the law may pressure people to adopt emerging neurotherapies. It focuses on a range of private law doctrines that, unlike the criminal law, do not come up very often in neuroethical discussions. Three doctrines—the doctrine of mitigation, the standard of care in negligence, and child custody determinations in family law—are addressed to show how the law may pressure people to consent to treatment by offering a choice between accepting medical treatment and suffering a legal disadvantage. The doctrines considered in this article apply indirect pressure to submit to treatment, unlike court-ordered medical treatment, which applies direct pressure and is not addressed here. The outcome of this discussion is to show that there is a greater range of social pressures that may encourage the uptake of novel neurotherapies than one might initially think. Once treatments that were developed and offered with therapeutic benefits in mind become available, their existence gives rise to unintended legal consequences. This certainly does not mean we should cease developing new therapies that may be of tremendous benefit to patients, but it does raise some questions for physicians and for legal policy-makers. How should physicians, who are required by medical ethical principles to obtain valid consent to treatment, react to a patient’s reluctant consent that is driven by legal pressure? From the legal policy perspective, are our legal doctrines satisfactory or should they be changed because, for example, they unduly promote the collective interest over individual freedom to reject medical treatment or because they channel us toward economically efficient treatments to the detriment of more costly but potentially superior approaches of dealing with behavioural problems?

Legal Title Versus Effectivités: Prescription and the Promise and Problems of Private Law Analogies

Faced with the question whether the effective display of sovereignty in territory by one state can in law trump another state’s prior definitive title to the same expanse, international courts and tribunals have drawn inspiration from analogy with the private law doctrines of acquisitive prescription (from the civil law) and adverse possession (from the common law). But the different structural bases of municipal law and international law respectively have made the straight transposition of these cognate doctrines to the latter technically and conceptually unworkable. In response, while guided by the policy reflected in acquisitive prescription and adverse possession, international adjudicators have cast about for explanatory private law analogies more attuned to the horizontality and voluntarism of the international legal order. Yet the availability in municipal law of a number of relevant doctrines has produced a hotchpotch of conceptual bases for the trumping of legal title by effectivites. The common denominator nonetheless has been the necessity of manifest acquiescence on the part of the title-holder to a change in title. In turn, such acquiescence has been described, and more accurately, as tacit recognition. Ultimately, then, an international legal question has been answered, and answered better, in the native language of international law.

Constitutional Aspects of a European Civil Code

The idea of a European Civil Code shares an intriguing feature with that of a European Constitution: while both relate to concepts that are well-known at the national level, traditional doctrines of private law and constitutionalism do not seem to fully capture the specific characteristics of these European instruments. Traditional constitutional theory does not take into account such elements as ‘supranational citizenship’ or the co-existence of autonomous political communities that are part of the European constitutional order. Traditional contract law theory does not address the particular tension between market integration and consumer protection that characterises many harmonising instruments in European contract law. Consequently, questions have arisen regarding the definition of the new European constitutional order and the development of an adequate system of contract law for the regulation of the EU’s Internal Market. This contribution explores the common ground in these debates, in order to find out to what extent the private law and constitutional projects can take inspiration from each other. In particular, the focus is on the constitutional credibility and relevance of a European Civil Code.

The Limited Autonomy of Private Law

The relationship between private law adjudication (typified as the bipolar encounter between plaintiff and defendant) and social values usually associated with much broader settings (such as the pursuit of distributive justice by state legislation) is a perennial concern of legal theory. The task of this essay is to strike the middle-ground between the voices of private law autonomy and the total instrumentalization of private law for any desirable value, purpose, or state of affairs. I claim that neither autonomist theory nor its instrumentalist counterpart provides a satisfactory account of private law. Autonomist theory is implausible because private law rests on a thick perfectionist view of society and hence cannot claim to be neutral vis-à-vis social values. But unlimited instrumentalism is also misguided because, as autonomists insist, the bipolar structure of private law litigation indeed entails certain normative constraints. These two propositions yield the main conclusion of this essay: the normative infrastructure of any private law doctrine should be responsive both to bipolarity constraints on the one hand, and to social values appropriate to the pertinent category of human interaction on the other. The essay further explores the implications of this conclusion for three specific doctrinal issues: marital property, monetary remedies for breach of entitlements, and the right of entry (into property).

The Limited Autonomy of Private Law

The relationship between private law adjudication (typified as the bipolar encounter between plaintiff and defendant) and social values usually associated with much broader settings (such as the pursuit of distributive justice by state legislation) is a perennial concern of legal theory. The task of this essay is to strike the middle-ground between the voices of private law autonomy and the total instrumentalization of private law for any desirable value, purpose, or state of affairs. I claim that neither autonomist theory nor its instrumentalist counterpart provides a satisfactory account of private law. Autonomist theory is implausible because private law rests on a thick perfectionist view of society and hence cannot claim to be neutral vis-a-vis social values. But unlimited instrumentalism is also misguided because, as autonomists insist, the bipolar structure of private law litigation indeed entails certain normative constraints. These two propositions yield the main conclusion of this essay: the normative infrastructure of any private law doctrine should be responsive both to (minor) bipolarity constraints on the one hand, and to social values appropriate to the pertinent category of human interaction on the other. The essay further explores the implications of this conclusion for three specific doctrinal issues: marital property, monetary remedies for breach of entitlements, and the right of entry (into property).

Recovery for Probabilistic Benefit

Private law is replete with instances in which parties who make costly investments that benefit others are entitled to recover from the beneficiaries, even in the absence of an explicit contract. When these investments yield only a chance for benefit, the law's treatment of the right to recovery turns out to be highly inconsistent. Many types of costly actions create uncertain (probabilistic) benefits. By the time the benefit becomes known, the law has to determine whether the recovery by the investing party should depend on the ex-post benefit as it materialized, or on the ex-ante value (the average benefit or the cost of the investment). Previous scholarship has shown that either the ex-post or the ex-ante approach, appropriately tuned, can create optimal incentives. This paper argues that, in practice, courts often fail to apply either the ex-ante or the ex-post approaches, and use instead approaches, which distort incentives. Under one hybrid approach, the investing party can recover either the ex-post benefit enjoyed by the beneficiary, or the cost of the investment, whichever is greater. Under a second hybrid approach, the investing party can recover either the ex post benefit or the cost of the investment, whichever is lesser. The paper shows that a variety of private law doctrines incorporate these hybrid approaches, and speculates on the reasons why they emerge. It suggests that hybrid rules can emerge inadvertently, in the interface between pure ex-post and ex-ante recovery rules, or as a result of courts' imperfect information. In addition, hybrid rules can be created deliberately, to adjust the measure of recovery. The paper argues that the magnitude of recovery adjustment embodied in these deliberate hybrid rules is rarely capable of serving its underlying goal.

European Company Law: Comments and Meta-comments onCentros

Halbhuber's project started out as a treatise on the policies of European company law (3), but eventually became an analysis of the German academic discussion of European company law. Halbhuber puts the case that German lawyers, entangled in the structures of their national private law doctrine, widely misinterpreted the judgments of the ECJ in Segers (4),Daily Mail(5) andCentros, thus dissuading agents from using foreign (e.g. English or Irish) private limited companies for their business activities in Germany.

Robert Feenstra, Legal Scholarship and Doctrines of Private Law, 13th–18th Centuries. (Collected Studies Series, 556.) Aldershot, Eng., and Brookfield, Vt.: Variorum, 1996. Pp. x, 329, numbered nonconsecutively; black-and-white portrait frontispiece and tables. $98.95.

Robert Feenstra, Legal Scholarship and Doctrines of Private Law, 13th–18th Centuries. (Collected Studies Series, 556.) Aldershot, Eng., and Brookfield, Vt.: Variorum, 1996. Pp. x, 329, numbered nonconsecutively; black-and-white portrait frontispiece and tables. $98.95.

The Missing View of the Cathedral: The Private Law Paradigm of European Legal Integration

The traditional partition between public and private law continues to reinforce the belief that public law is the only proper realm of political debate, where decisions having redistributional consequences are and should be taken. This allows for a seemingly minor role of private law in the debate on European integration. This article challenges such a traditional image by noticing the central role of private law in the several legal systems of the European Union, and by analysing a few instances of resistance to private law integration. The analysis suggests that, while fully engaged in debating the public law implications of integration, Member States strive to keep civil adjudication within their control and to protect the self–contained, autonomous structure of their codes (or sets of private law doctrines) from the disruptive impact of European legislation. Integrationist pressures compel national legal actors to make explicit the social and economic choices underlying private law rules. Against such pressures, States’ resistance may take the shape of formalist entrenchment.