TY - JOUR
T1 - New Private Law Theory as a Mosaic
T2 - What Can Hold (Most of) It Together?
AU - Dagan, Hanoch
N1 - Publisher Copyright:
©
PY - 2022/7/22
Y1 - 2022/7/22
N2 - 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 configurations of property or of contract as a given. This lesson, in turn, is crucial for contemporary discussions of private law obligations that go beyond the libertarian duty of non-interference. Rather than reifying the libertarian conceptions of property and contract and resorting to exogenous justifications for our interpersonal obligations of non-discrimination and accommodation, private law theory can - and indeed should - rely on happier conceptions of these core legal institutions, which vindicate the freestanding significance of these obligations and thus also validate their transnational applicability.
AB - 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 configurations of property or of contract as a given. This lesson, in turn, is crucial for contemporary discussions of private law obligations that go beyond the libertarian duty of non-interference. Rather than reifying the libertarian conceptions of property and contract and resorting to exogenous justifications for our interpersonal obligations of non-discrimination and accommodation, private law theory can - and indeed should - rely on happier conceptions of these core legal institutions, which vindicate the freestanding significance of these obligations and thus also validate their transnational applicability.
KW - Legal theory
KW - autonomy
KW - justice
KW - private law
UR - http://www.scopus.com/inward/record.url?scp=85135737446&partnerID=8YFLogxK
U2 - 10.1017/glj.2022.49
DO - 10.1017/glj.2022.49
M3 - מאמר
AN - SCOPUS:85135737446
VL - 23
SP - 805
EP - 817
JO - German Law Journal
JF - German Law Journal
SN - 2071-8322
IS - 6
ER -