Private Law Theory Research Articles

Rough Consensus and Running Code. A Theory of Transnational Private Law

Rough Consensus and Running Code. A Theory of Transnational Private Law

Is Private Law Meaningless?

Is private law meaningless? When we look at the cases, the statutes, the theories mentioned time-and-again in relation to private law, are we just looking at a maze of technical reasoning, or can we give some overall shape or meaning to what the law is doing? Many writers think they can. Some are thinking of a moral meaning – private law makes sense as a statement of personal responsibilities, and is in that sense rather more than a mass of technical rules. Others are thinking rather more in economic terms: private law embodies peoples’ rights and entitlements in the market-place, it defines what they can buy and sell, sets out the implications of each, and protects their choices to trade or not to trade. Those two sorts of explanation – the moral and the economic – are (in various versions) some of the main theories put forward here, and when people talk of Big Private Law Theory it is usually one of these that they are thinking of. There is a third sort of explanation, which does not aim quite so high, and that is purely doctrinal explanation. A theory of this sort gives a clear exposition of what private law is – sums it up in a few key propositions or taxonomic structures – and tries to leave it at that. There is a take-it-or-leave-it mentally with all of these big theories (a point will return to). Moralists are not much interested in arguing over whether morality matters, doctrinalists are not much interested in arguing over whether doctrine matters – though in each case, they definitely think it does. These big theories of private law are the topic of this essay.

Remedies, Rights, and Properties

This Essay studies the relationship between rights and remedies and celebrates the multiplicity of our private law rights in general and of our property institutions more particularly.Remedies obviously serve as instruments of rights enforcement, but they also participate in the constitution of the rights they help enforce. Although institutional reasons bring about certain gaps between the content of rights and the judicial response to their infringement, the constitutive role of remedies introduces significant subtlety into the domain of rights. Thus, the choice of different remedies, as well as the possibility of incorporating qualifications, limitations, and even obligations, allows private law to accommodate qualitative (and normatively attractive) distinctions between different types of rights.This phenomenon of the multiplicity of rights manifests itself in property law as well. Property law is composed of a distinct, though not infinite, number of property institutions, each reflecting a particular balance of values that is attached to a specific category of social contexts and a specific category of resources.This variety and the contingent facts on which it partly relies should not be embarrassing. Quite the contrary: a truly liberal law must resist uniformity and endorse multiplicity, which is both freedom-enhancing and individuality-enhancing. By appreciating private law’s multiplicity and understanding the normative value of the (at times contingent) choices on which it relies, as well as their potential critical bite, private law theory can provide a better understanding of the order embedded in this complex legal mosaic and, possibly, even fruitfully contribute to its improvement.

Party Autonomy, Distributive Justice and the Conclusion of Contracts in the DCFR

Abstract The rules on the conclusion of contracts are at the core of contract law. This article aims not only to describe these rules contained in Book II of the academic Draft Common Frame of Reference (DCFR) but also to illustrate the underlying values and policies. The DCFR severely restricts contractual freedom and pursues distributive aims. Unfortunately, it is certainly inefficient and often even impossible to achieve the latter goal through private law. The DCFR's provisions on non-discrimination, withdrawal rights as well as on contractual fairness in particular are critically examined against this background. These provisions address important problems, but they are not based on a convincing private law theory. The article suggests various improvements of the DCFR's rules to take party autonomy, and hence efficiency, more seriously.

The Instrumental Justice of Private Law

Instrumentalists and deontologists have long battled for an exclusive theory of private law. The instrumentalists have argued that private law is merely a means to achieving any number of political or social ends. Deontologists, by contrast, have contended that the law seeks only the moral end of justice and cannot be used for anything else. In this article, I critique these extreme positions and offer an intermediate theory called justice. I show that the absolute instrumental view is elusive, illusory, and illiberal, while the absolute deontological view is incoherent, implausible, and in one critical respect, impossible. Instrumental justice avoids these problems by combining the best elements of both perspectives. This composite theory acknowledges the inherent instrumental nature of private law, but establishes justice as its central, organizing idea. So framed, instrumental justice's primary function is to create rights that serve as tools for marking and mapping important interests, and for defending and vindicating those interests when they are threatened or impaired. Rights, in turn, both imbue the law with the moral credibility necessary to perform secondary social functions, and prevent it from pursuing these functions at the expense of its core principles.

Party Autonomy, Distributive Justice and the Conclusion of Contracts in the DCFR

The rules on the conclusion of contracts are at the core of contract law. This article aims not only to describe these rules contained in Book II of the academic Draft Common Frame of Reference (DCFR) but also to illustrate the underlying values and policies. The DCFR severely restricts contractual freedom and pursues distributive aims. Unfortunately, it is certainly inefficient and often even impossible to achieve the latter goal through private law. The DCFR's provisions on non-discrimination, withdrawal rights as well as on contractual fairness in particular are critically examined against this background. These provisions address important problems, but they are not based on a convincing private law theory. The article suggests various improvements of the DCFR's rules to take party autonomy, and hence efficiency, more seriously.

A dignidade da pessoa e o fundamento dos direitos humanos

O apogeu dos direitos: luzes e sombra; A usura da referência à “eminente dignidade da pessoa humana”; a pessoa, como o ser que é digno; A formulação da noção de pessoa; A perda de sentido ético. A privacidade; Pessoa, homem, corpo e genoma; O anencefálico; O direito ao desenvolvimento da personalidade; A realização da personalidade; O outro: a comunhão; O Direito da Pessoa e a Incidência sobre a Teoria Geral do Direito Civil são os temas abordados por este Autor.

Personal Inviolability and "Private Law"

Personal Inviolability and "Private Law"

A Powers-Based Approach to the Protection of Ideas

This paper provides a unified account of idea-submission law in terms of legal powers. It argues that the duty upon a recipient of a novel and original idea results from the exercise of a legal power that the law confers on originators in order to enable them to share their ideas selectively. This paper contributes to our understanding of idea-submission law and to private law theory more generally in a number of ways that have not been addressed in the literature. First, it systematically reveals the lack of fit between the case law and conventional legal theories for the protection of ideas. Second, it provides an account that accommodates the core criteria for the protection of ideas while illuminating the interests and values served by this area of the law. Finally, this paper articulates an important principle at work in Anglo-American law that limits the scope of an originator's power to control disclosure: the imposition of special duties is appropriate only where there is some minimum foundation of voluntariness. Anglo-American law is reluctant to recognize duties that inescapably flow from unavoidable positions, such as the duty to rescue, whereas it accepts a category of duties I call positional duties: duties that inescapably flow from avoidable positions. I place the duty not to use or disclose another's novel and original idea in this category of duties.

The Anatomy of Private Law Theory: A 25th Anniversary Essay

Some contemporary writers find the origins of theorizing about private law in Aristotle, who had a profound influence on European jurists from the middle ages to the early modem period.' More plausibly, the genesis of private law theory as a discrete area of academic study might be traced to the publication of Ronald Coase's famous article, 'The Problem of Social Cost' in 1960.2 Early work by Guido Calabresi deployed economic concepts as a basis for criticizing the way tort law dealt with 'the costs of accidents'.3 By contrast, Richard Posner found, in the pursuit of economic efficiency and the maximization of social wealth, both descriptive explanation of, and normative justification for, many of the rules and principles of tort and other areas of private law.4 So vigorous was the offspring of Coase's work that by 2003, one writer felt able to describe application of economic concepts to the analysis of law as 'the most successful school of jurisprudence of the second half of the twentieth century'.5 Such a precocious child inevitably provoked strong reactions, and in 1981 Posner published a critique of the work of several early proponents of the most prominent rival to economic analysis, loosely referred to ever since as 'corrective justice theory'.6

'In the Glass Darkly': Legacies of Nazi and Fascist Law in Europe

Christian Joerges & Navraj Singh Ghaleigh, ed., Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and Its Legal Traditions (Oxford: Hart Publishing, 2003). Subsequent references appear parenthetically in the text. I Introduction The dust jacket of Darker Legacies of Law in Europe reproduces Georg Kolbe's 1945 sculpture Liberated Man. The tragic figure provides a fitting opening to this volume of thought-provoking essays on the legacy of Nazi and Fascist law in Europe and perhaps beyond. Kolbe's naked figure bent over in a posture of profound shame and disgrace transforms the triumphant implications of 'liberation' into a chilling irony. And the essays gathered in Darker Legacies remind us of the continuing implications of the shadow of disgrace that accompanied the liberation of Europe from National Socialism and Fascism. But Kolbe's figure also bespeaks the specific disgrace of the law in its willing service of brutal and totalitarian projects. Law, like man, was liberated to face its horrifying responsibility. Darker Legacies probes the nature of this responsibility, asking important questions about the meaning and endurance of law's complicity in evil. The collection is rich in breadth and depth, with scholars from Europe and beyond tackling topics as diverse as fascist public and private law, the role of the legal profession and of adjudication in confronting evil law, the link between the European integration project and fascist reconceptualizations of international law, and the complex heritage of modern human rights discourse. The scope of Darker Legacies is important, for it takes questions that have been primarily directed towards Nazi law and puts them into a broader European framework. As Joseph Weiler's epilogue rightly reminds us, this may threaten to elide significant differences. But with the integration of Europe, it nonetheless seems important to consider the ways in which the legacy of law during the period of National Socialism and Fascism continues to cast its shadow across Europe and perhaps beyond. One of the contributions of this volume is to draw our attention to the legacy of fascism in European legal institutions beyond Nazi Germany. A nice illustration is found in Pier Giuseppe Monateri and Alessandro [End Page 449] Somma's discussion of Nazi and Fascist theories of contract. These theories, the authors note, were united by a shared antipathy to the liberal political values expressed by traditional contract theory but divided because of the Roman law heritage of traditional theories of private law. The two regimes thus shared a commitment to the primacy of the individual's responsibility to the collectivity, a commitment they theorized and discussed. The Italians, however, were more reluctant to abandon their Roman heritage and implement fascist reconstructions of contract. Another helpful contribution to our understanding of the breadth of the fascist legacy is found in Luca Nogler's account of how Nazi conceptions of a 'new European order,' characterized in part by the treatment of labour, played out in Fascist Italy. As Nogler outlines, in the Italian context the much-discussed Nazi conceptions of labour and corporatism met with a complex reaction of both reception and resistance, not unlike the reaction that Monateri and Somma point to in contract law. The volume also contains a number of pieces that remind us of the extent and complexity of the European fascist debates about public and constitutional law. Given Carl Schmitt's prominence as the pre-eminent legal theorist of Nazism, it is unsurprising that consideration of his work forms a major theme in this volume. But before discussing what this volume contributes on that point, it is worth noting that Darker Legacies reveals not only Schmitt's dominance as a theoretician but also the extent to which consideration of and debate with Schmitt was critical to the fascist understanding of public law in Italy, Spain, and Austria as well. An example is found in Massimo La Torre's insightful...

Restitutionary Damages as Corrective Justice

For corrective justice, liability is the consequence of the parties' being correlatively situated as the doer and sufferer of an injustice, and the remedy is seen as undoing that injustice to the extent possible. Combining consideration of legal doctrine and private law theory, this article applies the framework of corrective justice to gain-based damages for torts. Within this framework, restitutionary damages ought to be available only insofar as they correspond to a constituent element in the injustice that the defendant has done to the plaintiff. The radical proposal that allows restitutionary damages for any wrongful gain is unsatisfactory because it fails to link the damages that the plaintiff receives to the normative quality of the defendant's wrong. In contrast, dealings in another's property give rise to such damages because the idea of property includes within the owner's entitlement the potential gainsfrom the property's use or alienation. Restitutionary damages should not be seen as serving a deterrent or punitive function; such a function cannot account for why the plaintiff, of all people, is entitled to the defendant's gain. Properly understood, even situations where the plaintiff's wilfulness or calculation increases the damage award fit within the framework of corrective justice. The corrective justice approach thus repudiates the notion that restitutionary damages are occasions for the promotion of social purposes extrinsic to the juridical relationship between the parties.

Restitutionary Damages for Breach of Contract: An Exercise in Private Law Theory

This article focuses on cases of restitution within contract, investigating the normative desirability of enabling a promise to pursue the profits derived by the promisor through a breach of contract as an alternative pecuniary remedy of wide applicability. Situated at the frontier of both contractual and restitutionary liability, the question of whether restitutionary damages for breach of contract should be available has received a considerable amount of attention. This article makes a critical examination of the normative groundings that have been proposed for and against awarding this pecuniary remedy. This article arrives at two significant conclusions. The first is deconstructive. Parts I and II critique two conventional arguments often raised in the debate over restitutionary damages. These Parts raise doubts as to the ability of these arguments to substantiate the doctrinal conclusions they purport to support. I claim that both promise-keeping and unjust enrichment are neutral between rules offering restitutionary damages and denying such awards. The significance of the results of this analysis extends beyond the specific questions at hand, since these arguments dominate many of the debates surrounding private law theory. The second conclusion reached is reconstructive. Parts III, IV and V present three normative considerations that are more helpful: protection of proprietary rights, enhancement of efficiency, and good faith. Here an attempt is made to reconceptualize the conventional arguments for the derivation of legal rules from these normative prescriptions. From this reconceptualization, we realize that in order to settle the debate over restitutionary damages for breach of contract, a choice must be made between the instrumental conception of contract and its more cooperative alternative. Thus, it emerges that here, too, just as in the case of many other legal issues, the persistent need to choose between two conflicting social visions cannot be avoided.

What's Wrong with Restitution

The law of restitution has developed out of the law of quasi-contract and the law of constructive trust. Inadequate attention to the logic and coherence of doctrines in the law of restitution, however, renders this new law as opaque and confused as its predecessor. This is largely due to the remedial mentality of the common law. The remedy to the remedial mentality is to concentrate future efforts in stating doctrine on defining rights, not remedies. The precedent for this type of change in method is the transformation that occurred in contract and tort over the past 100 years, inspired, in part, by civilian theories of private law. The right that generates the remedy restitution is the cause of action in unjust enrichment. It arises where there has been a non-consensual receipt and retention of value, that is, a receipt and retention of value that occurs without "juristic reason." "Nonconsensual" means by mistake, by theft or by finding. There are a number of problems in the method of the common law tradition which stand in the way of recognizing this simple formulation: (a) The inherent expansiveness of "restitution " and "unjust enrichment" if these terms are not rigorously defined; (b) The lack of serious competition for the expansive versions of the subject, on a number of fronts; (c) The lack of a clear direction in the efforts to reform the law of quasi-contract and constructive trust; (d) The deeply embedded nature of the quasi-contract thinking; (e) Poor analysis in some areas of the law of contract and (f) Tort; and (g) The lack of an explicit agency of reform in the tradition.

Justifying private property rights: a message from Hegel's jurisprudential writings

This article seeks to unfold the character, scope and trajectory of justifiable property rights within Hegel’s jurisprudential writings. It does so in order to try to make this reputedly ‘difficult’ and much neglected theorist fit for undergraduate consumption on private law courses.If we accept the need for an intelligible social theory of private law, why should lawyers consider that of Hegel? Hegel devoted his last book to a ‘Philosophy of Right. This text is, however, barely mentioned by even the more comprehensive of modern textbooks on jurisprudence. There could be little ground for complaint if such neglect of Hegel’s legal writings were based upon a fully reasoned consideration and then subsequent rejection due to certain vital and demonstrable flaws within them.

Theory concerning with the Grounds of Juristic Act (“geschäftsgrundlagelehre”) as general Theory of private Law

Theory concerning with the Grounds of Juristic Act (“geschäftsgrundlagelehre”) as general Theory of private Law