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Summary Private Law in a European and International Context
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Privat Law in a European and International ContextWeek 1 3
Academic Text 1 3
Quoestions 7
Academic Text 2 8
Academic Text 3 9
Academic Text 4 17
Class 20
Week 2 22
Academic Text 1 23
Class 24
Week 3 25
Academic Text 1 25
Academic Text 2 28
Aziz-Case 30
Bauer-Case 31
Seminar 32
Lecture 34
Week 4 36
Academic Text 1 37
Seminar 39
Week 5 41
Week 6 42
Academic Text 1 42
Academic Text 2 43
Academic Text 3 44
Seminar 44
Week 7 45
Academic Text 1 45
Academic Text 2 46
Case 48
Lecture 48
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, Week 1
—> the evolving concept of private law
a) the idea of private law;
a. In the Weinrib reading, we nd what we may consider a classical conception of
private law, which focuses foremost on the relationship between the parties rather
than any societal issues that such a relationship may raise/contribute to. It is then
this classical conception of private law that has been both historically challenged,
due to the raise of the labour movement and social democracy, as well as currently
under new scrutiny in relation to the contemporary societal challenges such as
digitalization or sustainability. These changes may be seen as functionalism
(Weinrib) or instrumentalization of private law (Schmid).
b) Europeanisation of private law
a. The traditional concept of private law has not been challenged only by societal
developments, but importantly also by European integration, as well as (be it to a
smaller extent) by globalization. The European integration has been in fact one of
the most transformative forces in the eld of private law. In this rst class we will
outlines some of the basic concepts related to the Europeanisation of private law,
sketching the European speci c dynamics of instrumentalization (Manko, Schmid).
Academic Text 1
Ernest J. Weinrib, The Idea of Private Law, Oxford University Press 1995
Chapter 1, Understanding Private Law, pp. 1-21
- private law is a participant in our most common transactions
- private law directly connects two particular parties through the phenomenon of liability
- both procedure and doctrine express this connection
- procedurally, litigation in private law takes the form of a claim that a particular plainti presses
against a particular defendant
- doctrinally requirements such as the causation of harm attest to the dependence of the
plainti s’s claim on a wrong su ered at at the defendant’s hand
- bipolar relationship of liability
Purpose in Private Law
- standard view in contemporary scholarship: like all law, private law is normative only to the
extent that it serves socially desirable purposes; and one understands private law by rst
identifying these purposes and then evaluating its success in serving them
- author is contrasted the standard view with the approach he will be developing
- the standard view regards private law from an external perspective fails to take seriously the
features expressive of private law’s inner character
- author suggests instead that one must understand private law from a perspective internal to
it
- functionalism: one comprehends law through its goals (American legal scholarship)
- jurisprudence of Oliver Wendell Holmes: economic approach which has produced complex
and sophisticated analyses of the incentive e ects of di erent liability rules; wealth
maximization, market deterrence
- the proposed goals specify aspects of human welfare (for instance: compensation of injury,
minimizing of the frequency and seriousness of accidents) —> „the object of law is to serve
human needs“
- task of scholars is to specify the goals to indicate how di erent goals are to be balanced, to
assess the success of current legal doctrine in achieving the speci ed goals, and to
recommend changes that might improve that success
- a consequence of the current focus on independently justi able goals is that private law is only
indirectly implicated in the functionalist question
- the functionalist starts by looking past private law to a catalogue of favored social goals
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, - private law matters only to the extent that it forwards or frustrates these goals
- what the functionalist proposes is not so much a theory of private law as a theory of social
goals into which private law my or may not t
- author says that functionalist approach to private law are incomplete
- private law ist more than the sum of its results
- private law includes a set of concepts, a distinctive institutional setting, and a characteristic
mode of reasoning —> functionalism ignores these aspects and therefore fails to account of
what is most characteristic of private law as a legal phenomenon
- the favored goals of the functionalists are independent not only of private law but also of one
another
- the purpose of private law being itself is dismissed —> private law ist the legal manifestation of
independently justi able goals
- dismissal of the internal intelligibility of private law; the idea of a phenomenon intelligible only in
terms of itself is unfamiliar
- author: some of the most signi cant phenomena of human life - love - is intelligible in this
way —> private law is just like love
- the idea of the internal intelligibility of private law has been standard in Western legal theory
ever since the distinctive character of private law was rst noticed by Aristotle
- the idea of the private law’s internal intelligibility been so dominant in the history of legal
theory that one can fairly regard it as the classical understanding and to argue for its
continuing signi cance
The Assumptions of Functionalism
- rst assumption: law is not an autonomous body of learning
- because the functionalist goals are justi able independently and the law’s purpose is to
re ect them, the study of the law becomes parasitic on the study of the nonlegal disciplines
(economics, political, theory, and moral philosophy) that might validate those goals
- law is considered to have no meaning except that which it manages to leach from other
disciplines and inquiries
- second assumption: law cannot be separated from politics
- recourse to independently valid goals implies the nonexistence of a distinctively legal mode
of justi cation
- none of the goals or arguments supporting them can claim a privileged position by being in
some sense inherently legal
- third assumption: law’s conceptualism is not to be taken seriously in its own right
- fourth assumption: no distinction exists between private and public law
- all law is public, in that the legal authorities of the state select the favored goals and inscribe
them into a schedule of collectively approved aims
- private law is public law in disguise
—> author aims to undermine all these assumptions
- (4) private law construes the litigating parties as immediately connected to each other
- interaction so conceived is categorically distinct from that of public law, which relates
persons only indirectly through the collective goals determined by state authority
- (1) the autonomy of private law as a body of learning is a consequence of the distinctiveness of
private law as a mode of interaction
- (2) to understand private law, we must take seriously its fundamental concepts which are the
juridical markers of the immediate connection between the parties —> private law is a juridical,
not a political, phenomenon
Understanding Private Law from Within
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