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1 - The Inside and the Outside of Law?

from Part I - Methods and Disciplines

Published online by Cambridge University Press:  09 April 2021

Stefan Grundmann ,
Hans-W. Micklitz  and
Moritz Renner
By
Stefan Grundmann
Stefan Grundmann
Affiliation:
European University Institute, Florence
Hans-W. Micklitz
Affiliation:
European University Institute, Florence
Moritz Renner
Affiliation:
Universität Mannheim, Germany
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Summary

When this book seeks to encompass the theoretical foundations of recent private law theory (private law understood in a broad sense, encompassing questions of regulation and rule-setting in particular), it takes a stance on legal theory that draws heavily on broad social theory (i.e. on theory developed for the most part outside legal scholarship). It seeks to combine it with legal theory in the narrow (traditional) sense, looking at law (in its changing structure) namely with tools of legal philosophy such as logic or ethics and from within legal scholarship. In this, ‘The Inside and the Outside of Law?’ as a title refers to a topic for discussion rather than making a statement. Private law theory as proposed by legal scholars will be combined with concepts drawn from law and economics, legal philosophy, sociology and the behavioural sciences; constitutionalism combined with considerations of consensus and its intrinsic justification – all in relation to markets, risks, persons and organizations.

Type
Chapter
Information
New Private Law Theory
A Pluralist Approach
 , pp. 35 - 58
Publisher: Cambridge University Press
Print publication year: 2021

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References

Esser, Josef, Vorverständnis und Methodenwahl in der Rechtsfindung: Rationalitätsgrundlagen richterlicher Entscheidungspraxis (Frankfurt: Athenäum, 1972), pp. 7–9, 116–41 (English translation available on the book website)Google Scholar
Raz, Joseph, Between Authority and Interpretation: On the Theory of Law and Practical Reason (Oxford: Oxford University Press, 2009), namely Chapter 12 on interpretationCrossRefGoogle Scholar
Dworkin, R, Taking Rights Seriously (Cambridge / MA: Harvard University Press, 1977)Google Scholar
Fuller, L, ‘Positivism and Fidelity to Law: A Reply to Professor Hart’, 71 Harvard Law Review (1958), 630–72Google Scholar
Grechening, K / Gelter, M, ‘Divergente Evolution des Rechtsdenkens: Von amerikanischer Rechtsökonomie und deutscher Dogmatik’, 72 RabelsZ (2008), 513–61Google Scholar
Hart, H. L. A., The Concept of Law (Oxford: Oxford University Press, 1961, 2nd ed., 1994)Google Scholar
Nourse, V / Shaffer, G, ‘Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory?’ 95 Cornell Law Review 61–138 (2009)Google Scholar
Ripert, G, Aspects juridiques du capitalisme moderne (2nd ed., Paris: Librairie Générale de Droit et de Jurisprudence, 1951)Google Scholar

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