Private Law Theory Research Articles

Bridging the gap(s): The importance of private law theory in the EU context

This article advocates for applying private law theories originating in the common law to EU private law. It argues that those theories can enhance the coherence and workability of EU private law, which currently lacks a comprehensive doctrinal structure. They can also help EU private law overcome the prevailing but flawed functionalist approach that suggests that EU private law primarily serves as a policy tool to achieve specific goals.The article unfolds in three parts: first, it compares the development of civil and common law private law theory, highlighting why thick private law theory only developed in common law jurisdictions and arguing that the same reasons apply to EU private law. Second, it contends that common law theories can enrich the discourse on EU private law, emphasising the need to consider both EU and national private law norms together. Lastly, it proposes that the common law-derived New Private Law theory offers a promising approach to interpreting EU private law, reconciling interpersonal aspects with instrumental objectives. This integration could foster a common language for discussing EU private law, akin to Roman law’s historical role. The paper encourages scholarly debate and adaptation of these theories to local conditions, aiming to bridge the gap between private law theory in common and civil law jurisdictions.

Property Law Theory and Building Encroachments from a Comparative Perspective

Abstract Conceptualism has a difficult standing in contemporary private law theory. This also affects discussions in property law, where the research agenda often seems primarily interested in deconceptualization. From a comparative perspective, this complicates the discourse, as many national codifications of property law still adhere to strong concepts. This anti-conceptualist bias also leads to the development of distorted narratives about concrete issues in property law. According to this narrative, property is a conceptualist barrier that prevents each case from being decided on its own merits. Accordingly, not only must property be broken down into a “bundle” of inter partes relations. The law should also focus on the outcome of disputes, which is best achieved at the remedial level. It is also in this sense that the prominent distinction between property rules and liability rules has been understood and applied. While realism serves the important purpose of preventing overly conceptualist tendencies, these narratives do not stand up to closer scrutiny of how property law concepts actually work. They also run the risk of destroying concepts where they are needed to decide cases. This essay will use the example of building encroachments in comparative property law to illustrate that anti-conceptualism often fights against the clichés created by its own protagonists. Building encroachments are, from a comparative perspective, a very concrete example of the adaptability and flexibility of property.

Energising Private Law, Introduction to Symposium

The world faces an unprecedented challenge: a comprehensive and swift energy transition is necessary to achieve crucial policy goals and protect our societies from the impending climate crisis. Given the enormity of this task, we must utilise all available legal tools. This volume underscores the significance of bringing private law to bear on issues of the energy transition. Through a series of works, it begins to unpack the vast potential of private law doctrine and theory for providing meaningful and practical solutions to the vexing climate challenges ahead.

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

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.

Christianity and Law in the Enlightenment

The European and American Enlightenment movements of 1688 to 1815 transformed the Western legal tradition, notably in areas of constitutional law, criminal law, private law, legal and political theory, and legal education. Particularly the American and French Revolutions effected massive and sometimes violent changes to traditional patterns of law, politics, and society — separating church and state and placing a new premium on democratic rule of law by the general will and public opinion. These legal reforms were grounded in part in new Enlightenment liberal beliefs in deism, rationalism, individualism, and nationalism — ideas that came to strong expression in the many new constitutions and codes issued in the later 18th and 19th centuries. Even so, Enlightenment legal reformers often worked side by side with Christian legal reformers, and they reconstructed traditional Christian legal teachings more than they created laws anew. As a consequence, until the mid-19th century, there was more continuity than discontinuity between Enlightenment-based legal teachings and practices and those of the Western Christian tradition. The Enlightenment, however, provided new secular logics for many of the traditional laws that it adopted and then adapted, and these secular teachings would later fuel the more strident post-Christian, if not anti-Christian, legal campaign of modern liberalism.

Digital Opportunities for the Implementation of Transactions with Residential Premises

Relevance. Digitalization processes have covered many areas of modern human life, information and communication technologies are forming a new reality – digital reality. Digital technologies are also being widely introduced into the legal sphere, including the turnover of real estate, the execution of transactions with it. The implementation of transactions with residential premises is among the problems that have not lost their significance for decades, having fundamentally important social and economic significance, digitalization of transactions with residential premises increases the level of relevance. Digital modernization also generates a number of problems, one of the main problems is the state's unwillingness to systematically transform the legal regulation of public relations, which is largely due to the lack of legislation necessary to regulate digitalization, the absence of a single definitive apparatus; the above fully applies to transactions with residential premises.The purpose of the article is to attract the attention of the scientific community to the issues of digital opportunities for the implementation of transactions with residential premises, to familiarize with the results of the author's research in the designated area.Objectives: consideration of approaches to the concept of "digitalization" presented in modern legal science; consideration of the procedure for concluding transactions with residential premises using digital technologies; formation of proposals for improving the current Russian legislation.Methodology. The methodology of the undertaken research is based on the achievements of the general theory of law, private law and public law science, which make it possible to systematize the available theoretical and empirical data on the digital possibilities of implementing transactions with residential premises.Results. In the course of the undertaken research, the risks faced by participants in civil law relations (in particular, when implementing transactions with residential premises) were identified, a number of promising proposals aimed at improving the regulatory framework were developed.Conclusion. Digitalization of transactions with residential premises indicates the correlation of relevant legal procedures to the level and requirements of the development of information and communication technologies. The authors substantiate the prospects of digital opportunities for the implementation of transactions with residential premises.

The Idea of Obligation in Polish Law

In Western legal tradition jurisdictions, the transition from the Roman idea of obligatio to the doctrine of the legally binding relationship was not a universal process. Anglo-Saxon lawyers discuss contract and tort theories separately. Different doctrines have emerged from the development of the theory of the legally binding relationship in the Civil Law Tradition. This article shows how this process has played out in the Polish legal discussion. The specific premises of the Polish legal experience were that applied Roman law had little influence in Poland until the end of the 18th century, Austrian law served as the foundation for the development of the Polish doctrine of the legally binding relationship, the Polish Code of Obligations of 1933 replaced French, Austrian, German and Russian law on Polish territories, and the development of the Polish theory of private law after WWII was influenced by the dominance of Marxist theory. Consequently, the Polish legal experience provides a particular perspective on the premises supporting or blocking the relationship between the doctrine of legally binding relationships and social reality.

Systemic Failure and Systemic Change in Private and Business Law: An Introduction

European private and business law has been able to maintain its foundational principles and structures intact, while rapidly reacting to and incorporating societal change. Time and again, profound crises have threatened the project of European integration. In hindsight, many of these challenges have furthered rather than derailed this project. However, the system of European private and business law will only be able to evolve if it is able to translate the mechanisms of social change into the language of the law. The task ahead is one for different areas of private and business law, from the law of contracts to company law, but it is also a task for a new theory and methodology of private law. Systemic Failure, System Building, European Private and Business Law, Global Financial Crisis, Climate Crisis, Stability, Evolution, Innovation, Disruption, Regulatory Competition

Public nuisance for private persons

The public nuisance tort is now in a critical stage of development, mostly in the United States but also in other jurisdictions, including civil law systems. It is becoming ever more consequential in practice and, at the same time, widely misunderstood by courts and scholars. Our ambition is to defend a private law theory of public nuisance. Contrary to the view that the underlying rights protected by this tort contrast with private rights (say, to bodily integrity), we argue that these public rights are private rights like any other right in the law of torts since they protect private persons taken severally. And, yet, these private rights are also distinctively public in the sense that they protect the interests of private persons to use and enjoy the public sphere. In that, public nuisance imposes not merely ex post liability for undermining these interests but also, first and foremost, constructs a liberal public sphere. Our case for public nuisance shows that private law extends beyond the private sphere to capture entitlements and responsibilities that do not arise from, or attach to, ownership of land; it also resists the reduction of private law to rights of action and ex post determination of liabilities. More concretely, our reconstruction of public nuisance solves two key doctrinal challenges that the tort struggles with – concerning the standing to sue in public nuisance and the economic loss rule – and it also refines the potentially significant role of this tort in addressing the urgent threat posed by climate change.

The Enigma of Interpersonal Justice in Private Law Theory

Abstract The purpose of this article is to establish that contemporary private law theory has located no foolproof conception of interpersonal justice. I examine four accounts and find them wanting: the instrumentalist deterrence and loss-spreading approaches of economists; Kantian right and corrective justice; critical and social justice accounts; and the human flourishing approach. If my critiques are justified, this leaves us with the enigma of ‘interpersonal justice’. I consider three options going forward, rejecting the suggestion that we should abandon the search for a theoretical concept or be content with a modus vivendi. I sketch a third option, ‘emancipating interpersonal justice’, drawing from the resources of contractualist philosophy, to suggest that interpersonal justice is not a unitary concept or single regulative idea but a framework for determining what we owe each other in different spheres of interaction, and propose how this might illume certain questions of private law theory.

Family Values in Russian Law and the Problem of Orphanhood: Past, Present and Future

Relevance. The concept of state family policy, approved by the Government of the Russian Federation until 2025, is aimed at preserving and maintaining traditional family values, respect and full support for family, childhood, motherhood and fatherhood. At the same time, the problem of orphanhood in our country, including social, is not resolved, which actualizes the conduct of scientific research and scientific discussions in this area.The purpose of the article is to form a scientific approach to the definition of family values in Russian law through the problem of orphanhood.Objectives: to trace the history of the formation of family values, to determine the main traditional family values, to form the concept of traditional family values and the forms of their legal regulationMethodology. The methodology of the research is based on the achievements of the general history and theory of law, private law and public law science, with the help of which the available theoretical and empirical data on traditional family values were systematized and an appropriate concept was built.Results. In the course of the study, the concept of family values in Russian law was formed and effective legal mechanisms aimed at consolidating traditional family values in Russian law were proposedConclusion. Family values in Russian law are undergoing transformation due to various factors, therefore, it is necessary to determine the main traditional values of the Russian family, introduce effective legal mechanisms that allow preserving traditional family values and, accordingly, the prestige of forming and creating a family. The definition, implementation and promotion of these values will be an effective method of combating orphanhood in Russia.

Specifying Interpersonal Responsibilities in Private Law: Property Perspectives

Abstract Recognizing Wrongs reflects an ongoing challenge within private law theory: once an ideal of interpersonal responsibility and accountability is recognised at private law’s centre, how are these dimensions of private law to be developed in a manner that does not unduly undermine systemic predictability and clarity? This article responds to this challenge from the perspective of property law and theory. It suggests that inspiration as to the kinds of core unifying values that could clarify private law’s obligational dimensions can be found in varied sources, including in Thomistic property thinking, with opportunities for identifying and developing interpersonal responsibilities already existing in property doctrine, for example in the law of servitudes. As we face urgent sustainability challenges, with their strong inter-generational dimensions, the article argues that scholars should think afresh about the need to clarify the moral basis of interpersonal responsibilities in respect of property, with the Thomistic focus on human sustenance providing one candidate for reasoning about ownership obligations.

Poverty and Private Law: Beyond Distributive Justice

Abstract Poverty has so far been overwhelmingly understood as a state of distributive injustice. As a result, the debate in private law theory about the role of private law in alleviating poverty has essentially collapsed into the question of whether private law could, and should, promote distributive justice. We challenge the terms of this debate and, in particular, poverty’s reduction to its distributive dimension. We argue that poverty is a social condition with direct implications for the transactional freedom and equal standing of the person affected by it. In particular, poverty can impair one person’s ability to interact with another on terms reflecting reciprocal respect for their self-determination and substantive equality. Our account identifies institutional limitations on the operationalization of poverty accommodation in private law on the one hand, while elaborating promising ways for incorporating poverty into a broad range of private law interactions on the other.

Partnership: Private Law and Political Theory in Rabbinic Laws of Neighbors

This essay offers a reading of early rabbinic laws of neighbors and reconstructs a distinctive political theory with a "partnership" concept at its heart. The thesis presented here begins with the idea that for the early rabbis, there is a form of partnership that arises spontaneously—i.e., with no need for agreement or contract—between people who live in close vicinity. In this way, individual neighbors become partners in spaces, objects, and structures situated between their private properties, and the people of the city become partners in all public matters and assets. Private-law reasoning serves the rabbis to theorize the life of the city as a whole. A major implication of this theory is that ultimate political authority lies in the hands of the people of the city, not in those of potential affluent or religious leaders. The people of the city rule the city because it is theirs in partnership. This civic theory, it is proposed, should be read in the intellectual context of Roman political thought. The rabbis are shown to exploit the gap between the views of Cicero and the Roman jurists about the city and to produce a political theory beneficial to provincial cities that would be recognizable to Roman intellectuals of their time. The people of the city, therefore, rule as equals among themselves and as autonomous vis-à-vis external imperial power. Reading the early civil legal principles in this way serves to expand the canon of Jewish political thought.

Hanoch Dagan and Benjamin C Zipursky (eds), Research Handbook on Private Law Theory (Edward Elgar Publishing, Cheltenham, Northampton 2020) x + 507 pp. ISBN: 978-1-78897-161-4. ₤ 189.90

Article Hanoch Dagan and Benjamin C Zipursky (eds), Research Handbook on Private Law Theory (Edward Elgar Publishing, Cheltenham, Northampton 2020) x + 507 pp. ISBN: 978-1-78897-161-4. ₤ 189.90 was published on December 1, 2022 in the journal Journal of European Tort Law (volume 13, issue 3).

Legal contracts in the field of private law

The article focuses on the legal nature of regulatory agreements in the field of private law. It is argued that in the economic and social sphere, the regulation of social relations is often practiced on the basis of normative agreements other than the norms of the law. It is noted that by its nature, a normative agreement expresses the conciliatory will of two or more parties to establish, modify and terminate their rights and obligations, to exercise or withhold certain legal actions.
 The examples of the material industries reveal the nature of regulatory agreements. The article focuses on collective agreements and collective agreements in labor law. The history of their appearance and scope is revealed. It is concluded that the reason for their emergence in the field of labor law was the need to resolve the confrontation between employers and employees in the field of labor relations regulation. By their structure, the provisions of collective agreements can be divided into normative and binding. Actually regulations are local norms on the main issues of labor, pay, conditions and labor protection, social and household issues. That is why not all content of collective agreements is normative.
 While revealing the importance of private-law normative treaties, attention is drawn to standard and exemplary treaties in civil and commercial law. Despite the widespread position in the theory of private law, the position of typical and exemplary contracts to the sources of law, it is noted that from the standpoint of the general theory of a normative contract it is not possible to consider typical or exemplary contracts a kind of normative contract. This claim is substantiated by the fact that standard and exemplary treaties are developed and enter into force on the basis of a unilateral legal act (for example, a by-law of the Cabinet of Ministers of Ukraine), while a normative agreement is always a bilateral (or multilateral) arrangement of the subjects of law.
 It is concluded that it is necessary to further study the problems of application of normative treaties in the field of private law, since to other sources of branches of private law the normative treaty is not just a way of regulating social relations, but a way of self-regulation.

The history of job (in)security: Why private law theory may not save work law

Abstract This Article uses a history of the push for job security in the United States during the late 20th century to assess New Private Law (NPL) theory. The history recounts the rise and fall of common law and statutory approaches to replacing at-will employment with termination for just cause only. Applying NPL theory to that history, the Article argues that NPL theorists’ current approach to defining their topic of study and distinguishing it from public law is inconsistent within and across theories. NPL theorists seek to carve out an area of law where interpersonal morality trumps legal economists’ goal of collective welfare maximization. That conceptual project depends on a coherent and consistent approach to distinguishing private from public law. Ultimately, the Article argues, NPL theorists face a more fundamental problem, however. Regardless of how one categorizes the events in this history, it shows that the common law-derived interpersonal morality at the heart of NPL theory may not strengthen worker protections in the ways at least some of its theorists hope.

Nondomination and the ambitions of employment law

Abstract There is something missing in existing discussions of domination. While republican theory, antisubordination theory, and critical legal theory each have contributed significantly to our understanding of domination, their focus on structural relationships and group subordination can leave out of focus the individual wrongs that make up domination, each of which is an unjustified exercise of power by one person over another. Private law (supported by private law theory) plays an important role in filling out our pictures of domination and the role of the state in limiting it. Private law allows us to recognize domination in wrongs by one person against another, and it has the potential to articulate the state-enforced boundaries on domination as well as a framework for thinking through inevitable compromises between the aspiration to nondomination and other basic interests of a liberal state. We can understand employment law as continuous with private law, that is, attempting to vindicate a nondomination principle in the context of employment by regulating specific acts of employers. Alternatively, we might understand employment relationships to define group membership, commonly recognized along class lines. In that case, employment law is not about individual nondomination but about mitigating class subordination. It might do this in service of the antisubordination principle, or in order to ensure that employees are capable and ready to exercise the responsibilities of democratic citizenship. While these various purposes largely coincide, there are points of normative divergence which sometimes require that we prioritize one or other function of employment law over the others.

МЕТОДОЛОГІЯ МІНІМІЗАЦІЇ ЮРИДИЧНИХ РИЗИКІВ У МІСТІ

The article deals with methodological aspects of avoiding and reducing legal risks in the city. Legal problems are raised, which have an impact on the harmonious development of the city. Issues of danger for life of city-dwellers are considered. Appeal to theoretical problems of the methodology of risks is caused by the desire to investigate in which direction modern law develops on the way to regulate modern relations of safety in the city. The emphasis is on the methodology of legal risks, in that deep and broad sense, which helps not only in finding the criteria of delimitation of spheres of public and private law as well as subjective rights of participants of the relevant social relations, but also in the formation of our knowledge of a holistic picture on the way of security events in the city. The question of the ratio of approaches of risk definition is revealed at the interdisciplinary level. It is noted that the theory of private law gives quite comprehensive answers to the question of determining the risk, its legal nature and the relationship with the institution of responsibility. Using the methodological component, it is indicated those logical steps aim at fully avoiding or minimizing risks.

Against Essentialism in Private Law Theory: Private Law as an Artifact Kind

Against Essentialism in Private Law Theory: Private Law as an Artifact Kind