Private law theory and the past

Law Quarterly Review, 2018

Over the last four decades of common law thought, there have been increasingly sophisticated attempts to develop comprehensive theories of private law. Chief amongst these are (1) theories of corrective justice, (2) economic theories, and (3) formalist accounts. The common feature of these apparently diverse “grand theories” is a lack of trust in collective action: legislatures are not trusted to serve the public good, individuals are trusted only to pursue their private interests, and judges are trusted only when they focus on technical legal issues, not when they ask whether their decisions may have a broader significance. These accounts implicitly contrast the rights of individuals with the good of the community. Yet the opposition is false: safeguarding the rights of individuals is safeguarding the good of the community, and vice-versa. Their approach makes large areas of private law either invisible or incomprehensible, and leave them with little to say on how the law can be re...

Ideology and Private Law: Polish Experiences in the Long 20th Century, 2025

The aim of the present chapter is to enquire about the relationship between ideology and private law, with particular reference to the historical dimension of private law. From a methodological perspective, the present paper should be seen as a metamethodological intervention, grounded in critical legal theory, aimed at proposing certain broad research questions at the interstices of legal history and critical legal theory. The main argument advanced in the chapter is that the questions suggested by critical legal theory could be extremely relevant and topical for research on legal historians, and could help enlarge the scope of their enquiry beyond the traditional scope of research. Specifically, the chapter will put forward a certain typology of the ideological entanglements of private law (positing the categories of extra-juridical ideology, juridical ideology and legal ideology), and will argue that any analysis of the ideological dynamics of private law should ideally entail taking into account all three types of ideologies which interact with private law, focusing on all possible vectors of influence in a broad social, political and economic context.

Rabels Zeitschrift fuer auslaendisches …, 2007

SSRN Electronic Journal, 2021

This essay reviews four recent English-language essay collections, each of which proposes a vision of private law theory – that is, of how private law appears in the light of a wider understanding of the world. It concentrates on how each collection gives some sort of shape to the emerging discipline. Discussion of the shape, meaning and significance of private law is of course nothing new; but the recent massive outpouring of theory, and the issues which have been treated as important, require some discussion of the intellectual climate which has led us to this place. For the most part, this essay argues, the discussion has been governed by the increasing obsolescence of classical private law concepts, which the more progressive writers have taken as a call to develop new concepts, and the more traditional writers have taken as a call to defend what is valuable about them; over time, this has increasingly pushed the traditionalists to a position where they can describe some (though hardly all) of what we all see, but which is largely impotent in justifying it – that is, in explaining why it is worth retaining. Meanwhile, the terms of debate have become increasingly narrow, as continuity is privileged over change, the lawyer’s point of view privileged over that of other community members, and national court-based law is emphasised over the many other forms of social ordering. Yet there are now also welcome signs of a broader approach, by which different perspectives are seen as complementing one another rather than as rivals, and there is (sometimes at least) genuine enquiry into what is really universal and what is merely a local present-day peculiarity. And we might be approaching – to put it no higher– the time when private law theory is a genuine conversation rather than as a mere cacophony of voices.

SSRN Electronic Journal, 2000

2011] AFTERWORD 1041 influence of "law and" in their resort to synchronic analyses of relational conjunction and disjunction, to which they add diachrony in order to reveal the effect of law, or to explain its reality, by assessing change in its relation to other phenomena over time. Unsurprisingly, the animating hypotheses of twentiethcentury legal history embrace the same broad relational problematics that have preoccupied twentieth century "law and" theory: instrumentalism, relative autonomy, mutual constitutiveness, legal construction, autopoiesis, and indeterminacy. 10 The shift to "law as. . ." suggests something else, something distinctive. Concretely, it suggests that explanations of law are not to be found, either necessarily or sufficiently, in its relations to other things. As Shai Lavi notes, with justification, the shift affords an opportunity to think beyond long-familiar Weberian categories and trajectories. 11 It is not determinedly programmatic, a route to the next big concept, but open-ended (hence the ellipsis). Yet it would be idle to pretend that "law as. . ." takes no position, that it is not historically situated. Blithely unaware of it at the outset, the conveners of the conference where the essays here were first presented have discovered that we are on a path that others are also following. We find ourselves riding a wave, one reverberating in both legal 12 and historical 13 scholarship. The wave owes its existence to developments in both history and law. As to the latter, it has never been more of a "hypostatized construct" than at present. 14 We return to this observation below. 15 But what of the former? It, too, hypostatizes itself, though in a more limited sense, being a professional practice with less instrumental reach. Still, as a professional practice, contemporary history, like law, is full of talk of itself. History's talk is of what history has to offer the present. 16 One offering is the narrative history that has become something of a staple of literary nonfiction. Narrative history represents history as edifying stories of the past. As Gordon 10.

German Law Journal

Stefan Grundmann, Hans Micklitz, and Moritz Renner’s New Private Law Theory: A Pluralist Approach is a wide-ranging, ambitious, and fascinating project. In this article I offer one way to read the NPLT as a mosaic, rather than a patchwork, by first taking seriously the idea of legal theory as the core of NPLT’s methodological commitments, and second taking seriously its subject matter of private law as the source of its substantive underpinnings.Legal theory, I argue (much in line with GMR’s rich text), is distinctive from other discourses about law given its acute awareness to law’s normative filter, which furthermore implies a synthetic commitment that these other discourses do not share. But legal theory should also, I claim, be attentive to the constitutive role law plays in constructing the building-blocks of many of our interpersonal interactions, and it should thus be particularly cautious from relying on philosophical or social scientific inquiries that take contingent confi...

Jurisprudence, 2019

Nicholas McBride's The Humanity of Private Law: Part I. Explanation is, in many ways, a ground-breaking work in private law theory. The book makes highly ambitious claims about the nature of private law, human flourishing and Western liberal societiessomething rather unusual in contemporary legal theory, in which we have grown accustomed to a more piecemeal approach to legal phenomenaand substantiates those claims with arguments taken from English private law, history and philosophy. McBride does not shy away from discussing highly contested issues such as the true nature of morality, 1 the history of English private law, 2 or even fairly abstruse topics such as the metaphysics of Being and 'the implications of an undifferentiated noumenal reality for a Kantian right to independence'. 3 As one would expect with a wide-ranging book such as this, some readers might feel a bit disappointed with the length and depth in which some of the issues are addressed, and some readers might find that some of the arguments are not particularly well crafted. Its shortcomings notwithstanding, McBride's book is an original and welcome addition to the literature on private law theory that deserves to be widely discussed by philosophers of private law, even by those not particularly interested in English private law.

2008

ference and the closed workshop showed how varied the approaches and focuses, even the concepts and terms, are in the debate. Much translation was necessary; much learning was achieved. This issue presents the results of this conference and aims at instigating further learning. It brings together the papers presented as revised by the participants after the conference. We hope that this collection can spur further interest in the kind of international and interdisciplinary research that would seem adequate for a private law beyond the state.

Research Handbook on Private Law Theory, 2020