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New technologies have always challenged the social, economic, legal, and ideological status quo. Constitutional law is no less impacted by such technologically driven transformations, as the state must formulate a legal response to new technologies and their market applications, as well as the state's own use of new technology. In particular, the development of data collection, data mining, and algorithmic analysis by public and private actors present unique challenges to public law at the doctrinal as well as the theoretical level. This collection, aimed at legal scholars and practitioners, describes the constitutional challenges created by the algorithmic society. It offers an important synthesis of the state of play in law and technology studies, addressing the challenges for fundamental rights and democracy, the role of policy and regulation, and the responsibilities of private actors. This title is also available as Open Access on Cambridge Core.
Private law goes back to Roman law. Its codification in the nineteenth and twentieth centuries gave private law a public foundation. However, from the very moment of codification onwards, there was and there still is a tension between the civil codes and parliamentary legislative powers. Overall and until today, parliaments do not so easily interfere in national codifications. There is a certain reluctance throughout all countries with a codification and parliaments tend to rely first on the courts to find appropriate solutions for changing economic and political circumstances.
On 16 February 2017 the European Court of Justice had to decide the preliminary reference of Elisabeth Schmitt against TÜV Rheinland (Box 15.1). Thousands of women around the world were affected by substandard breast implants. The women brought actions to courts in France, Germany and elsewhere. E. Schmitt’s case is paradigmatic for how courts are struggling to apply tort law to this multifaceted constellation. This case serves as a starter for a discussion of the transformation of liability in the changing economic and political environment.
This chapter concerns the significance of the ordo-liberal economic constitution for the construction of the European Economic Community, the European Community and, today, of the European Union. In this context, the concept of multilevel governance and the economic constitution are interlocked. The founders of ordo-liberalism conceived of the ordo-liberal model in the context of a national economy – this constitutes the prime theme of Chapter 6 as far as it discusses Franz Böhm’s concept of a private law society – and not for a multinational community of states or for any kind of a transnational economic order.
European integration is now seventy years old and is about to turn into a historical research project of its own. It rests on the premise that the nation states share a common heritage, as well as intellectual, economic, political and philosophical foundations which hold the European legal system together. Law and integration through law are the means to realize the ambitious project (Chapter 24). The European Court of Justice (ECJ) is regarded as the motor of integration. The European Single Act advocated the building of an internal market, no longer through the four market freedoms and competition law alone, but most prominently through secondary EU law.
This chapter addresses one of the most prominent developments in private law in the twentieth century, the introduction of status-related rights, where status is connected to a higher degree of protection in law than the ‘normal’ person receives. The European Union is playing a prominent role in this development, in the field of non-discrimination (Chapter 14), but also in the field of consumer law. The difficult question is the decision on what a consumer is and when and under what conditions they may enjoy a higher degree of protection.
New Private Law Theory opens a new pathway to private law theory through a pluralistic approach. Such a theory needs a broad and stable foundation, which the authors have built here through a canon of nearly seventy texts of reference. This book brings these different texts from different disciplines into conversation with each other, grouping them around central questions of private law and at the same time integrating them with the legal doctrinal analysis of example cases. This book will be accessible to both experienced and early career scholars working on private law.
Constitutionalization of private law is a dazzling term. (1) Constitutionalization may mean materialization of private law through fundamental and human rights; (2) the idea of a private law society (Privatrechtsgesellschaft), as presented in Franz Böhm’s social theory of an economic constitution for a nation state (Chapter 6), or the European Union (Chapter 24); (3) or the self-constitutionalization of private law beyond the nation state (Chapter 25). In this chapter, constitutionalization is defined as the influence of fundamental and human rights – social, civil and political – rooted in national constitutions.
This chapter investigates the triangular relationship between public goods, varieties of capitalism (VoC) and corporate social responsibility (CSR). It brings two strands of discourse together which usually do not interact and certainly not in relation to their economic implications. Varieties of capitalism do not seem to say much about public goods, at least not in terms of economics. In a legal perspective though the VoC discourse focuses on the institutional and organizational conditions of market economies, which determine who is in charge of public goods, the companies, the state or both.
With the emergence of the Internet, the world of private law has changed. There are new modes of governing relations which interfere in private law. Private law relations are built on the availability, the accessibility and the functionality of the Internet. Online platforms are the visible intermediaries, but behind and underneath lies the internet technology that structures private relations and social norms of communication and interaction.
On 9 March 1999 the Court of Justice of the European Union (CJEU) shattered the well-established doctrine in continental private international law that the company statute is the right to the current seat of the company, that domestic company law cannot be validly formed by registration and that companies established abroad may participate in domestic legal transactions (Box 23.1)
The theory of private law must take into account the findings of different disciplines in order to develop an adequate description of society. It is therefore beyond question today that the findings of law and economics hold important insights for legislation and the application of law. The survey of a single neighbouring discipline, however, necessarily leads to a reduction in complexity. This reduction in complexity is helpful for developing theoretical models, but insufficient for adequately coping with legal problems.