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Martijn W. Hesselink - One of the best experts on this subject based on the ideXlab platform.
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Towards a Critical Theory of Justice in European Private Law
2020Co-Authors: Martijn W. HesselinkAbstract:This paper formulates core elements of a critical theory of justice in European Private Law. It first outlines the focus, scope and priorities of a justice approach towards Private Law. Then, it critically examines the injustice of certain core features of European Private Law’s basic structure. Finally, it briefly considers some key differences between the critical justice theory of European Private Law and most other Private Law theories.
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Private Law, Regulation, and Justice
European Law Journal, 2016Co-Authors: Martijn W. HesselinkAbstract:This paper critically engages with the European Regulatory Private Law thesis (ERPL). The main strength of ERPL is that it offers an entirely new perspective on European Private Law. However, as a complete theory of European Private Law, ERPL is too one-sided, both from a descriptive and from a normative point of view. With its strong focus on the Private Law locked up in regulatory silos for specific market sectors, it obscures the reality of the consumer acquis and its transformative force. A fuller picture would include the contours of a loosely coherent system of European Private Law that is currently emerging. The main pillars of that pragmatic system are (for now) the withdrawal rights, unfair term control, and remedies for nonconformity. Moreover, the contribution of European Private Law to access justice cannot be the only standard for its evaluation and critique; at least as important are interpersonal justice and democratic legitimacy.
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Private Law and the European constitutionalisation of values
SSRN Electronic Journal, 2016Co-Authors: Martijn W. HesselinkAbstract:According to the CFREU, the EU is founded on the general values such as values of human dignity, freedom, equality and solidarity. In addition, the TEU refers to a more political set of foundational values, ie respect for human dignity, freedom, democracy, equality, the rule of Law and respect for human rights. These references could be understood as purely ornamental, or as irrelevant in any case for Private Law. Indeed, it is true that the Court of Justice so far has never made any references to these values in Private Law cases. Still, the Court already has shown boldness before in the context of the interpretation and review of secondary EU Law in Private Law cases, when it discovered general principles of EU Law and general principles of civil Law. Therefore, it should not be excluded that the Court may be tempted one day to follow the example of the German constitutional court that famously understands its national constitution as expressing an objective system of constitutional values. This paper explores what such an understanding of Private Law as an instrument for furthering common European values would entail and examines whether such an ethical reading of European Private Law would be desirable. It argues that the promotion by the EU of a set of official values through its Laws is not compatible we the respect we owe each other in a society characterised by reasonable pluralism. In addition, it points to further difficulties, both of a moral and a practical nature, of the idea of advancing ethical values through Private Law. It concludes that although it is very well thinkable that the values to which the TEU and the Charter refer will one day be interpreted as an objective value system with (indirect) horizontal effects, the Court of Justice nevertheless should refrain from going down that road
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Private Law Principles, Pluralism and Perfectionism
SSRN Electronic Journal, 2012Co-Authors: Martijn W. HesselinkAbstract:This paper discusses the legitimacy of general principles of Private Law as they have been formulated recently by the Court of Justice of the European Union and proposed by the European Commission. It addresses challenges from different strands in political theory including liberal perfectionism, political liberalism and Habermasian discourse theory. There are four specific lessons to be learned from these theories. First, the quest should not be for very general and abstract principles with a very broad scope, but rather for principles of an intermediate level of abstraction and a limited scope, which could explain and bring coherence to a set of rules or a legal doctrine, but not to the whole Law of contract. Private Law principles which are too general and sweeping would risk to neglect the need for internal diversification within Private Law. Secondly, these Private Law principles should be situated on the non-constitutional level of ordinary Private Law, subject to the constitution (including its horizontal effect) which in turn must be compatible, in order to be legitimate, with the political principles of justice that the EU polity has given itself. Thirdly, the CJEU, although an institution that is not in itself a less legitimate Lawmaker than the legislator, also when it comes to Private Law principles, has a strong duty to explain itself and to provide good reasons for adopting general principles of civil Law and for choosing certain principles, especially if these principles happen to be controversial, either from a comparative Law point of view or along any of the other axes along which European citizens and European Member States may differ. Finally, there is no legitimate place for strong perfectionism in the deliberation on fundamental European Private Law principles; any Private Law perfectionism should be either local (in specific doctrines like unfair exploitation) or thin (limited to values like rationality). However, as long as we remain cautious is all these respects, the quest for general Private Law principles is perfectly legitimate. There is no contradiction per se in seeking to find general Private Law principles in a pluralist world.
Yitzhak Benbaji - One of the best experts on this subject based on the ideXlab platform.
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Welfare and Freedom: Towards a Semi-Kantian Theory of Private Law
Law and Philosophy, 2020Co-Authors: Yitzhak BenbajiAbstract:The Kantian theory of Private Law, as Ernest Weinrib and Arthur Ripstein have developed it over the last two decades, is based on a fundamental normative truth, viz., no person is subordinate or superior to another person. Kantians construe any attempt to understand and justify the distribution of the rights-claims and rights-liberties that constitute Private Law in terms of aggregate welfare and/or distributive justice, as a deep category mistake. This essay outlines a ‘semi-Kantian’ theory of Private Law, which is like Kant’s in that it understands Private Law as a means of instituting and protecting Private freedom. Yet, semi-Kantians insist that the choice between different Private Law programs, which respect Private freedom equally well, can at times be justified by considerations of aggregate welfare and distributive justice, as well as other considerations that concern the impact on society as a whole.
Andrew S. Gold - One of the best experts on this subject based on the ideXlab platform.
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introduction the oxford handbook of the new Private Law
2020Co-Authors: Andrew S. Gold, John C P Goldberg, Daniel B Kelly, Emily Sherwin, Henry E. SmithAbstract:“Private Law” embraces the traditional common Law subjects (property, contracts, and torts), as well as adjacent more statutory areas such as intellectual property and commercial Law. It also includes important areas that have been neglected in the United States but are beginning to make a comeback. These include unjust enrichment, restitution, equity, and remedies more generally. “Private Law” can also mean Private Law as a whole, which invites consideration of issues such as the public-Private distinction, the similarities and differences between the various areas of Private Law, and the institutional framework supporting Private Law – including courts, arbitrators, and even custom. The New Private Law is an approach to these subjects that aims to reinvigorate the study of Private Law by moving beyond reductively instrumentalist policy evaluation and narrow, rule-by-rule, doctrine-by-doctrine analysis, so as to consider and capture how Private Law’s various features fit and work together, as well as the normative underpinnings of these larger structures. This movement has begun resuscitating the notion of Private Law itself in the United States and has brought an interdisciplinary perspective to the more traditional, doctrinal approach prevalent in Commonwealth countries. The Handbook embraces a broad range of perspectives to Private Law – including philosophical, economic, historical, psychological, to name a few – yet it offers a unifying theme of seriousness about the structure and content of Private Law. This Introduction introduces the New Private Law and briefly summarizes the chapters in the volume.
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sizing up Private Law
University of Toronto Law Journal, 2020Co-Authors: Andrew S. Gold, Henry E. SmithAbstract:The conflict between external and internal perspectives in Private Law is both exaggerated and underplayed. Both external and internal perspectives pay too little attention to how the ‘micro’ level...
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Civil Wrongs and Justice in Private Law - The Relevance of Wrongs
Civil Wrongs and Justice in Private Law, 2020Co-Authors: Andrew S. GoldAbstract:This chapter discusses the senses in which Private Law is responsive to wrongs. It begins by explaining that while Private Law is responsive to civil wrongs, it is responsive to other kinds of wrongs, too, including moral wrongs. The chapter explains that Private Law proves particularly responsive to moral wrongs within the conscience-based jurisdiction of equity. It also notes that Private Law’s responses to wrongs are varied. Furthermore, in certain circumstances, courts’ concern for moral wrongs in the enforcement of legal rights will mean that it overlooks a civil wrong or deviates from its customary responses (remedial or otherwise) to these wrongs. Finally, the variety evident in Private Law’s responses to wrongs suggests that wrongs raise different concerns of justice within Private Law, some of which may be in tension.
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the corporation as a category in Private Law
2019Co-Authors: Paul B Miller, Andrew S. GoldAbstract:In this chapter, we examine the conceptualization of the corporation in Private Law, focusing particularly on categorization functions served by the corporate form. We argue that corporations are conceptualized as a distinctive kind of legal actor, their legal agency being constituted by Private and public Law alike. We explain the essentials of the corporate form, so understood, and outline the internal and external categorization functions that it performs in Private Law. Throughout, we emphasize that Private Law has ensured the legal and practical efficacy of the corporate form by adapting for exigencies generated by the artificial personality of corporations. We conclude with some observations about the challenges corporations present to general Private Law theory, including the work of corrective justice and civil recourse theorists. Amongst other things, we explain why leading theories of Private Law need to be significantly amended to account for the legal nature and moral status of corporations.
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Sizing up Private Law
SSRN Electronic Journal, 2016Co-Authors: Andrew S. Gold, Henry E. SmithAbstract:Functional and interpretive theories of Private Law appear to differ greatly. For functionalists, an external theory should capture real-world results in terms of efficiency, distributive justice, or some other functional criterion, leaving the morally-infused concepts immanent in the Law as an intermediate epiphenomenon. Functionalists tend to downplay the role of concepts and doctrines, especially those couched in the moral terms used by participants in the legal system – legislators, judges, and laypeople. By contrast, the interpretivist seeks first and foremost to be true to the moral self-understanding of the Law, which necessarily includes the concepts and rules of Private Law as expressed by those inhabiting the Law.In this paper, we argue that the conflict between external and internal perspectives in Private Law is misunderstood – and is both exaggerated and underplayed. Both external and internal perspectives pay too little attention to how the “micro” level of individual, even bilateral, interaction relates to the “macro” level of society and the Law as a whole. We will show that both perspectives overlook the resources they could employ to explain how the micro and macro are connected: in their different ways, external and internal perspectives do not draw out the connection between local simplicity and generalization. In a nutshell, both perspectives could converge on a picture of Private Law in which locally simple structures of bilateral rights and duties scale up to produce more complex structures at the level of society.We suggest that functionalists should take seriously the moral norms that are immanent in Private Law – these norms are central to the functioning of Private Law as a system. Without these modular components, Private Law can be intractably complex. Accordingly, we propose an inclusive functionalism, one that takes these moral norms at face value. These moral norms perform a crucial function of managing the otherwise intractable complexity of the interactions between parties governed by Private Law. We also propose an inclusive interpretivism, which is more open to functional considerations involving simplicity. Private Law must avoid intractable complexity if it is to function properly, and this calls for a simplicity criterion: interpretivists should look for moral norms that are both simple and generalizable.Once theorists recognize this point of convergence – on norms that are simple and generalizable – it becomes clearer what is at stake in Private Law disputes. Resolving Private Law’s conceptual structure at the middle level leaves open foundational questions. What grounds Private Law? Distributive justice, efficiency, or perhaps a mix of other values? Likewise, we can now better assess interactions between systemic, society-level goals and micro- or mid-level considerations. Should contract Law be adjusted so that it has different distributive effects? Should property Law be reformed so that it responds differently to fairness concerns, or to human flourishing? These and other questions can only be assessed properly once we have taken into account the way that Private Law operates as a system.
Hanoch Dagan - One of the best experts on this subject based on the ideXlab platform.
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Autonomy and Pluralism in Private Law
The Oxford Handbook of the New Private Law, 2020Co-Authors: Hanoch DaganAbstract:The main claim of this Essay, prepared for the Oxford Handbook of the New Private Law, is that much of Private Law is guided by an autonomy-enhancing telos. This telos is intrinsic to Private Law because two of its pillars – property and contract – are essentially power-conferring. This autonomy-enhancing telos also stands at the core of Private Law’s response to its acute legitimacy challenge. An autonomy-enhancing Private Law forms the foundation of a social life premised on the maxim of reciprocal respect to self-determination. It facilitates people’s self-determination by offering a structurally pluralist repertoire of property types and contract types. But, an autonomy-enhancing Private Law is careful to support only interpersonal interactions that do not undermine self-determination. This is why it ensures that these property types and contract types comply with relational justice and sufficiently protect people’s right to exit.
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The Distinction Between Private Law and Public Law
2020Co-Authors: Hanoch Dagan, Benjamin C. ZipurskyAbstract:Twentieth Century legal theorists – especially the American legal realists – provided vigorous critiques of the putative distinction between Private Law and public Law, persuading jurists that the distinction relied upon legal formalism. In the latter third of the Twentieth Century, the Law and economics school constituted a focused and dominant version of the legal realist capture of Private Law theory. By the 1990s, however, new forms of Private Law research developed, many of which we characterize as instances of “neo-realism.” And philosophical theorists brought Private Law theory full circle, re-embracing the distinction between Private Law and public Law. These views are depicted here as forms of “neo-conceptualism,” and they are in many ways the polar opposite of neo-Realism. In this Chapter, Dagan and Zipursky each defends a view of the Private/public distinction that falls in between the neo-realists and the neo-conceptualists. Dagan’s relational justice theory is a form of neo-realism highly receptive to the deontological concerns of the neo-conceptualists. Zipursky’s pragmatic conceptualism is a form of neo-conceptualism sensitive to the pragmatic and modernist concerns of legal realism.
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Poverty and Private Law: Beyond Distributive Justice
SSRN Electronic Journal, 2020Co-Authors: Hanoch Dagan, Avihay DorfmanAbstract:Poverty has so far been overwhelmingly understood as a state of distributive injustice. As a result, the debate in Private Law theory about the role of Private Law in alleviating poverty has essentially collapsed into the question of whether Private Law could, and should, promote distributive justice. We challenge the terms of this debate and, in particular, poverty’s reduction to its distributive dimension. We argue that poverty is a social condition with direct implications for the transactional freedom and equal standing of the person affected by it. In particular, poverty can impair one person’s ability to interact with another on terms reflecting reciprocal respect for their self-determination and substantive equality. Focusing on this relational dimension implies that the question poverty poses to Private Law is whether some of its instantiations ought to be tackled by setting just terms of interactions between Private persons, even when these terms fall short of, or even violate, the demands of distributive justice. Our account also identifies institutional limitations on the operationalization of poverty accommodation in Private Law on the one hand, while elaborating promising ways for incorporating poverty into a broad range of Private Law interactions on the other. We show that the provision of goods and services, education, housing, and legal services can incorporate Private Law duties of poverty accommodation. We further show that the doctrines of minimum wage, non-waivable warranty of habitability, price control, and fair access to credit are best seen as addressing a concern for the accommodation of poverty in the respective terms of employment, housing, consumption, and credit interactions. We thereby seek to reclaim a prominent role for Private Law in the obligation of the liberal legal order to eradicate poverty.
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The Challenges of Private Law
SSRN Electronic Journal, 2015Co-Authors: Hanoch DaganAbstract:Properly understood, Private Law establishes ideal frameworks for respectful interactions between self-determining individuals, which are indispensable for a society where all recognize one another as genuinely free and equal agents. Only Private Law can form and sustain the variety of frameworks necessary for our ability to lead our chosen conception of life. And only Private Law can cast them as interactions between free and equal individuals who respect one another as the persons they actually are, thus vindicating the demands of relational justice. Hence, the two animating principles of a liberal (that is, autonomy-enhancing) Private Law — structural pluralism and interpersonal accommodation. Building on this account of Private Law, this Essay offers a preliminary survey of three important challenges to Private Law in a liberal society. One challenge, prompted by the injunction of structural pluralism, is that of identifying missing frameworks, that is: detecting spheres of life in which Private Law fails to supply a sufficiently diverse set of alternative property institutions or contract types and is thus insufficiently autonomy-enhancing. Another challenge emerges whenever the constitutive good(s) of the social practice that the parties engage in are in tension with the injunction of interpersonal accommodation. These cases require Private Law to either allow these goods to override the injunction of interpersonal accommodation or else discard or reform the pertinent legal (and social) practice. Finally, because the intrinsic value of Private Law does not require treating Private Law and public Law as mutually exclusive categories, Private Law can consider utilizing public Law (vertical) mechanisms to help secure its horizontal mission and must be careful not to undermine the liberal state’s commitments to distributive justice, democratic citizenship, and aggregate welfare. I thus conclude with a consideration of the ways in which Private Law can coordinate with public Law, namely: either supplement its doctrinal framework with a regulatory infrastructure or adapt it in order to address pertinent public commitments while still meeting the demands of relational justice.
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Liberalism and the Private Law of Property
2014Co-Authors: Hanoch DaganAbstract:This Essay reviews Alan Brudner’s neo-Hegelian theory of property. It critically analyzes Brudner’s conceptualization of the moral significance of property for Private sovereignty, his understanding of the relationship between individual independence and self-determination, and his account of what makes Private Law Private. I argue that Brudner is wrong on all three fronts and, furthermore, criticize his account of the market’s putative legitimation of property and public Law’s alleged amelioration of the injustices entailed by a Private Law libertarian scheme.Notwithstanding these failures, I salute Brudner’s ambitious and provocative project not only due to its many insights, but also because it helpfully elucidates the main strands of justification that property Law must face. Indeed, a credible theory of property-for-self-determination must begin by remedying Brudner’s errors as per the moral significance of property for Private sovereignty, the relationship between independence and self-determination, and the distinctive nature of Private Law. This Essay provides preliminary suggestions on all three fronts.
Alan Brudner - One of the best experts on this subject based on the ideXlab platform.
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Private Law and Kantian Right
University of Toronto Law Journal, 2011Co-Authors: Alan BrudnerAbstract:In The Idea of Private Law, Ernest Weinrib sought to rescue Private Law's autonomy from functionalism's reduction of Private Law to an instrument of the public interest. The twin ideas he employed for this purpose were corrective justice and Kantian Right. According to Weinrib, corrective justice provides Private Law's unifying structure, while Kantian Right supplies its normative content. In this essay, I argue that Kantian Right cannot be the normative complement to the corrective-justice form of Private Law because, with the exception of trespass to the person, Private Law vanishes in Kantian Right. I argue that there is no possibility for an autonomous Private Law in Kantian Right and that there is, indeed, a logical progression from Kantian Right to the very functionalism that Weinrib opposes.