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This chapter deals with the different, and changing, conceptions of justice underlying modern private law systems. The foundations of modern private law had been laid in the nineteenth century and the political revolutions of that time are still reflected in many private law institutions. However, in the course of the twentieth century, private law has undergone a thorough transformation. Formalist conceptions of justice and equality have been gradually replaced by ideas of material, or distributive, justice, which aim at achieving social change through the means of private law.
Transnational law is of utmost practical relevance, as private law relations have always transcended the borders of national legal systems. There is a broad theoretical discussion of the topic, but the very concept of transnational law remains elusive. Is it a novel legal order made by non-state actors? A mere description of the ways in which different legal orders interact? Or rather a new perspective on the lawmaking process as an interplay of public and private, national and international actors?
Every theory of private law has to deal with the fact the law is just one means among many that private parties can use to order their relationships. This fact concerns every area of life, from families to corporations. Even if there are no formal laws regulating a certain area, there are nevertheless norms that determine how people behave, how others will judge their behaviour, and how deviant behaviour is sanctioned. In some instances, these norms can be considered as a form of private ordering. Here, private actors establish a normative order with effects comparable to those of state law (public ordering). The norms of private ordering that this chapter deals with are especially widespread where ‘official’, state-made law has little or no effect.
This chapter addresses the role of sociological approaches in private law theory. Although the intellectual history of sociology is closely interwoven with that of modern jurisprudence, its impact on today’s debates in private law scholarship is rather limited. This holds true especially for the fields of commercial and corporate law, which are largely dominated by law and economics approaches. In this context, the chapter aims to identify those parts of the socio-legal tradition that can make a specific contribution to contemporary discussions. Box 2.1 exemplifies this contribution with a case that is deliberately taken from the field of commercial, more precisely banking, law.
This chapter deals with two different social theories, which can be subsumed under the concept of theories of communication. Both theories analyse the role of the legal system, and private law in particular, in the context of modern, functionally differentiated societies. Their focus is on explaining the rationality of the legal system as ‘a rationality apart’. At the same time, they try to analyse the ways in which the law necessarily interacts with other fields of society: politics, the economy, religion, etc. Thus, the theories discussed in this chapter can be seen as reformulations of the tension between the ‘inside and the outside’ of private law (see Chapter 1).
This chapter deals with the role of corporations in private law. Private law relations have never been built on bilateral contracts alone. Collective actors in the form of corporations have always played an equally important role. To this extent, private law relations mirror the distinction between markets and organizations that is commonplace in economic theory (see Chapters 3 and 17). At the same time, the social role of corporations has always been subject to political and theoretical debate. Whereas, historically, early corporations have been granted legal personality by the political sovereign, the concept of legal personhood is nowadays founded on the principle of party autonomy.
This chapter discusses the relationship between private law and anti-discrimination law. Both conceptually and politically, the relationship between these two fields of law is as close as it is problematic. The principle of equal treatment is a fundamental and indispensable element of modern constitutional orders – and of law in general. It is clear that this principle is binding for public authorities: governments must treat all citizens equally, the courts must decide like cases alike. The scope of the principle for private actors, however, is much less clear. Private law is based on the principle of private autonomy, and the autonomous decisions of private actors follow private preferences, not the principle of equal treatment. Private actors’ decisions, then, might have discriminatory effects.
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.
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.
This chapter deals with the question of how constellations of private power are addressed by private law. Private law is often conceived as governing the relations of free and equal citizens (see Chapter 6). In reality, however, some private actors are more powerful than others; large corporations may have more bargaining power than their customers or employees. Competition between different market actors is never perfect and many markets, for example in the tech industry, are dominated by only a small number of players.
This chapter concerns the role of values in private law adjudication. It is closely related to the questions dealt with in Chapter 1 on the ‘inside and the outside of private law’. A strictly positivist theory of private law might argue that there is no place for values in a rule-based legal order. Indeed, conflicts of values seem much more important for interpreting open-textured and often politically charged constitutional norms than for applying the seemingly technical rules of private law.
However, disputes between private parties are by no means exempt from value conflicts. In a globalized world, it has even become more frequent that value conflicts play out in private law constellations.