Nils Jansen
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199588763
- eISBN:
- 9780191723315
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588763.003.0006
- Subject:
- Law, Philosophy of Law
This concluding chapter argues that non-legislative codifications, such as the American Restatements, the Principles of European Contract Law, and the UNIDROIT Principles of International Commercial ...
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This concluding chapter argues that non-legislative codifications, such as the American Restatements, the Principles of European Contract Law, and the UNIDROIT Principles of International Commercial Contracts, are no modern peculiarity. On the contrary: European private law has long been developed on the basis of texts that were largely independent of any political domination. This becomes apparent from the transjurisdictional character of most non-legislative codifications. Thus, private law has mostly been, and still is to a large degree, autonomous from the states' political system.Less
This concluding chapter argues that non-legislative codifications, such as the American Restatements, the Principles of European Contract Law, and the UNIDROIT Principles of International Commercial Contracts, are no modern peculiarity. On the contrary: European private law has long been developed on the basis of texts that were largely independent of any political domination. This becomes apparent from the transjurisdictional character of most non-legislative codifications. Thus, private law has mostly been, and still is to a large degree, autonomous from the states' political system.
Margaret Jane Radin
- Published in print:
- 2012
- Published Online:
- October 2017
- ISBN:
- 9780691155333
- eISBN:
- 9781400844838
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691155333.003.0003
- Subject:
- Law, Company and Commercial Law
This chapter focuses on the democratic degradation that may be caused by the apparent replacement of the law of the state with the “law” of the firm when boilerplate is deployed in mass markets. It ...
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This chapter focuses on the democratic degradation that may be caused by the apparent replacement of the law of the state with the “law” of the firm when boilerplate is deployed in mass markets. It considers mass-market boilerplate rights deletion schemes and how the widespread use of boilerplate causes democratic degradation; for example, it threatens the distinction between public and private ordering, undermines the rule of law, and erases legal rights. The chapter also examines private law, the main legal infrastructure of the liberal notion of private ordering, and copycat boilerplate. Finally, it discusses technological protection measures (TPMs) and their implications for legal infrastructure, along with measures that might help to make TPMs less problematic from the point of view of the rule of law.Less
This chapter focuses on the democratic degradation that may be caused by the apparent replacement of the law of the state with the “law” of the firm when boilerplate is deployed in mass markets. It considers mass-market boilerplate rights deletion schemes and how the widespread use of boilerplate causes democratic degradation; for example, it threatens the distinction between public and private ordering, undermines the rule of law, and erases legal rights. The chapter also examines private law, the main legal infrastructure of the liberal notion of private ordering, and copycat boilerplate. Finally, it discusses technological protection measures (TPMs) and their implications for legal infrastructure, along with measures that might help to make TPMs less problematic from the point of view of the rule of law.
William Cornish, Michael Lobban, and Keith Smith
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258819
- eISBN:
- 9780191718151
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258819.003.0009
- Subject:
- Law, Legal History
This chapter outlines the emergence of the conflict of laws or private international law, as a distinct discipline within English municipal law; but one that cannot be severed from either the spread ...
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This chapter outlines the emergence of the conflict of laws or private international law, as a distinct discipline within English municipal law; but one that cannot be severed from either the spread of common law in the Empire or the growth of public international law.Less
This chapter outlines the emergence of the conflict of laws or private international law, as a distinct discipline within English municipal law; but one that cannot be severed from either the spread of common law in the Empire or the growth of public international law.
Nils Jansen
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199588763
- eISBN:
- 9780191723315
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588763.003.0003
- Subject:
- Law, Philosophy of Law
The American Restatements of the law have become a major textual authority of the American common law. Today, large parts of the law have been restated, and the Restatements are taken by the ...
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The American Restatements of the law have become a major textual authority of the American common law. Today, large parts of the law have been restated, and the Restatements are taken by the participants to the legal discourse as a valid expression of the law. This chapter shows that the American restatement approach has also influenced the developments of transnational restatements of the law. The International Institute for the Unification of Private Law (UNIDROIT) has largely applied the terminology and formal style of the American Restatements for its Principles of International Commercial Contracts; and a similar approach was taken, on the European level, by the Lando Commission on European Contract Law. Today, the Restatements' formal style is used by the Study Group on a European Civil Code and by the Acquis Group, the main non-legislative actors in the current political process of unifying European private law.Less
The American Restatements of the law have become a major textual authority of the American common law. Today, large parts of the law have been restated, and the Restatements are taken by the participants to the legal discourse as a valid expression of the law. This chapter shows that the American restatement approach has also influenced the developments of transnational restatements of the law. The International Institute for the Unification of Private Law (UNIDROIT) has largely applied the terminology and formal style of the American Restatements for its Principles of International Commercial Contracts; and a similar approach was taken, on the European level, by the Lando Commission on European Contract Law. Today, the Restatements' formal style is used by the Study Group on a European Civil Code and by the Acquis Group, the main non-legislative actors in the current political process of unifying European private law.
Lucinda Miller
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199606627
- eISBN:
- 9780191731716
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199606627.001.0001
- Subject:
- Law, EU Law
The emergence of a European contract law is one of the more significant legal developments in Europe today. The complexities that lie at its heart also make it one of the more fascinating areas of ...
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The emergence of a European contract law is one of the more significant legal developments in Europe today. The complexities that lie at its heart also make it one of the more fascinating areas of legal study. European Contract Law: Exploring Europeanization examines the origins of the discipline and its subsequent evolution. It brings the discussion up-to-date with full analysis of the debate on the Common Frame of Reference and the future that this ambiguous instrument may have in the contemporary European legal framework. One of the central themes of the book is exploration of the multi-level, open architecture of the EU legal order and the implications of such governance arrangements for the EU’s private law programme. The book demonstrates that the key to understanding European contract law in the 21st century lies in adopting a perspective and mechanisms suitable for a legal order populated by multiple sources of private law. Legal pluralism is offered as a theoretical construct in relation to which the future of European private law might be shaped. Legal pluralism forces consideration of diversity’s normative appeal and readjusts the analytical spotlight beyond the traditional, centralised, legislative, ‘command and control’ means of regulation. In so doing, softer mechanisms are introduced for the governance of contract law; mechanisms that enable coordination between the different sites at which contract law operates. This reorientation in thinking about European contract law, indeed about Europeanization itself, enables the inevitable diversity and pluralism that is a feature of multi-level Europe to be captured within a framework that maximises the opportunities for mutual transformations and learning.Less
The emergence of a European contract law is one of the more significant legal developments in Europe today. The complexities that lie at its heart also make it one of the more fascinating areas of legal study. European Contract Law: Exploring Europeanization examines the origins of the discipline and its subsequent evolution. It brings the discussion up-to-date with full analysis of the debate on the Common Frame of Reference and the future that this ambiguous instrument may have in the contemporary European legal framework. One of the central themes of the book is exploration of the multi-level, open architecture of the EU legal order and the implications of such governance arrangements for the EU’s private law programme. The book demonstrates that the key to understanding European contract law in the 21st century lies in adopting a perspective and mechanisms suitable for a legal order populated by multiple sources of private law. Legal pluralism is offered as a theoretical construct in relation to which the future of European private law might be shaped. Legal pluralism forces consideration of diversity’s normative appeal and readjusts the analytical spotlight beyond the traditional, centralised, legislative, ‘command and control’ means of regulation. In so doing, softer mechanisms are introduced for the governance of contract law; mechanisms that enable coordination between the different sites at which contract law operates. This reorientation in thinking about European contract law, indeed about Europeanization itself, enables the inevitable diversity and pluralism that is a feature of multi-level Europe to be captured within a framework that maximises the opportunities for mutual transformations and learning.
William Lucy
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780198700685
- eISBN:
- 9780191706745
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198700685.001.0001
- Subject:
- Law, Philosophy of Law
On what basis does tort law hold us responsible to those who suffer as a result of our carelessness? Why, when we breach our contracts, should we make good the losses of those with whom we ...
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On what basis does tort law hold us responsible to those who suffer as a result of our carelessness? Why, when we breach our contracts, should we make good the losses of those with whom we contracted? In what sense are our torts and our breaches of contract ‘wrongs’? These two branches of private law have for centuries provided philosophers and jurists with grounds for puzzlement. This book provides an outline of, and intervention in, contemporary jurisprudential debates about the nature and foundation of liability in private law. After outlining the realm of the philosophy of private law, the book divides into two. Part I examines the various components of liability responsibility in private law, including the notions of basic responsibility, conduct, causation, and wrongfulness. Part II considers arguments purporting to show that private law does and should embody a conception of either distributive or corrective justice or some combination of the two. Throughout the book a number of distinctions — between conceptual and normative argument, between jurisprudential ‘theory’ and private law ‘practice’, between legal obligation and moral obligation — are analyzed.Less
On what basis does tort law hold us responsible to those who suffer as a result of our carelessness? Why, when we breach our contracts, should we make good the losses of those with whom we contracted? In what sense are our torts and our breaches of contract ‘wrongs’? These two branches of private law have for centuries provided philosophers and jurists with grounds for puzzlement. This book provides an outline of, and intervention in, contemporary jurisprudential debates about the nature and foundation of liability in private law. After outlining the realm of the philosophy of private law, the book divides into two. Part I examines the various components of liability responsibility in private law, including the notions of basic responsibility, conduct, causation, and wrongfulness. Part II considers arguments purporting to show that private law does and should embody a conception of either distributive or corrective justice or some combination of the two. Throughout the book a number of distinctions — between conceptual and normative argument, between jurisprudential ‘theory’ and private law ‘practice’, between legal obligation and moral obligation — are analyzed.
Irit Mevorach
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199544721
- eISBN:
- 9780191705564
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199544721.003.0001
- Subject:
- Law, Company and Commercial Law
This introductory chapter sets the scope and focus of this work. It explains that the book deals with multinational enterprise groups (MEGs) and the event of their financial distress, and it ...
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This introductory chapter sets the scope and focus of this work. It explains that the book deals with multinational enterprise groups (MEGs) and the event of their financial distress, and it delineates the key complexities involved with this issue. It explains that the book attempts to offer a framework for critically analysing means of treating insolvencies within MEGs, and that it also applies this framework when examining possible rules and procedures for dealing with MEG insolvencies. It explains that the works takes a multi-tiered approach considering for any insolvency mechanism how it fits with problems of insolvency, company law theory (the problem of groups), and of private international law. The chapter also delineates the structure of the book.Less
This introductory chapter sets the scope and focus of this work. It explains that the book deals with multinational enterprise groups (MEGs) and the event of their financial distress, and it delineates the key complexities involved with this issue. It explains that the book attempts to offer a framework for critically analysing means of treating insolvencies within MEGs, and that it also applies this framework when examining possible rules and procedures for dealing with MEG insolvencies. It explains that the works takes a multi-tiered approach considering for any insolvency mechanism how it fits with problems of insolvency, company law theory (the problem of groups), and of private international law. The chapter also delineates the structure of the book.
Martin Shapiro and Alec Stone Sweet
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780199256488
- eISBN:
- 9780191600234
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199256489.001.0001
- Subject:
- Political Science, Comparative Politics
Across the globe, the domain of the litigator and the judge has radically expanded, making it increasingly difficult for those who study comparative and international politics, public policy, and ...
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Across the globe, the domain of the litigator and the judge has radically expanded, making it increasingly difficult for those who study comparative and international politics, public policy, and regulation, or the evolution of new modes of governance to avoid encountering a great deal of law and courts. In this book, two leading political scientists present a compilation of their research in 11 papers (some old, some new) that focus on how to build and test a social science and politics of law, courts, and judging. Chapters 1–5 each contain two pieces, one by each author addressing a common topic. Each pair of papers is preceded by co-authored introductions that explain how the materials presented relate to the more general purpose of developing a broad-gauge social science research agenda on law and courts, discuss the original motivations for writing the papers, and trace important (but perhaps not always obvious) connections between the two offerings. Chapter 6 consists of a co-authored piece. The opening chapter features Shapiro’s classic ‘Political Jurisprudence’, and Stone Sweet’s ‘Judicialization and the Construction of Governance’, pieces that critically redefined research agendas on the politics of law and judging. Subsequent chapters take up diverse themes: the strategic contexts of litigation and judging; the discursive foundations of judicial power; the social logic of precedent and appeal; the networking of legal elites; the law-making dynamics of rights adjudication; the success and diffusion of constitutional review; the reciprocal impact of courts and legislatures; the globalization of private law; methods, hypothesis-testing, and prediction in comparative law; and the sources and consequences of the creeping ‘judicialization of politics’ around the world. Chosen empirical settings include the United States, the GATT–WTO, France and Germany, Imperial China and Islam, the European Union, and the transnational world of the Lex Mercatoria.Less
Across the globe, the domain of the litigator and the judge has radically expanded, making it increasingly difficult for those who study comparative and international politics, public policy, and regulation, or the evolution of new modes of governance to avoid encountering a great deal of law and courts. In this book, two leading political scientists present a compilation of their research in 11 papers (some old, some new) that focus on how to build and test a social science and politics of law, courts, and judging. Chapters 1–5 each contain two pieces, one by each author addressing a common topic. Each pair of papers is preceded by co-authored introductions that explain how the materials presented relate to the more general purpose of developing a broad-gauge social science research agenda on law and courts, discuss the original motivations for writing the papers, and trace important (but perhaps not always obvious) connections between the two offerings. Chapter 6 consists of a co-authored piece. The opening chapter features Shapiro’s classic ‘Political Jurisprudence’, and Stone Sweet’s ‘Judicialization and the Construction of Governance’, pieces that critically redefined research agendas on the politics of law and judging. Subsequent chapters take up diverse themes: the strategic contexts of litigation and judging; the discursive foundations of judicial power; the social logic of precedent and appeal; the networking of legal elites; the law-making dynamics of rights adjudication; the success and diffusion of constitutional review; the reciprocal impact of courts and legislatures; the globalization of private law; methods, hypothesis-testing, and prediction in comparative law; and the sources and consequences of the creeping ‘judicialization of politics’ around the world. Chosen empirical settings include the United States, the GATT–WTO, France and Germany, Imperial China and Islam, the European Union, and the transnational world of the Lex Mercatoria.
Reinhard Zimmermann
- Published in print:
- 2001
- Published Online:
- January 2010
- ISBN:
- 9780198299134
- eISBN:
- 9780191708046
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198299134.001.0001
- Subject:
- Law, Comparative Law
Legal history helps us to understand modern or contemporary law. It explains why the law has become what it is. It lays open the premises on which the modern law is based. It constitutes a rich ...
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Legal history helps us to understand modern or contemporary law. It explains why the law has become what it is. It lays open the premises on which the modern law is based. It constitutes a rich source of experience which is as valuable for the development of modern legal doctrines as for law reform. It may also reveal where a wrong turn has been taken and thus prevent us from repeating an error. Today, however, historical legal scholarship has acquired an added significance in view of the Europeanisation of private law and private law scholarship. It enables us to see the common ground between our modern national legal systems and to understand existing differences. It makes us aware of the fact that the law has not developed in national isolation and can, therefore, not properly be understood under purely national auspices. It constitutes the foundation for scholarship in comparative law and paves the way towards re-establishing a European legal culture. The focus of these Clarendon lectures is on the ‘vital connection that ties the present to the past’ (Savigny) and on the link between legal history, modern legal doctrine, and comparative law. They aim to recreate an awareness of a fundamental intellectual unity based on a common tradition. Such awareness is of central importance to sustain the process of a Europeanisation of private law which we experience today. The three lectures consist of: ‘The End of an Era: Transformation of Scholarship in Roman Law’, ‘The Transition from Civil Law to Civil Code: Dawn of a New Era?’, and ‘A Change in Perspective: European Private Law and its Historical Foundations’.Less
Legal history helps us to understand modern or contemporary law. It explains why the law has become what it is. It lays open the premises on which the modern law is based. It constitutes a rich source of experience which is as valuable for the development of modern legal doctrines as for law reform. It may also reveal where a wrong turn has been taken and thus prevent us from repeating an error. Today, however, historical legal scholarship has acquired an added significance in view of the Europeanisation of private law and private law scholarship. It enables us to see the common ground between our modern national legal systems and to understand existing differences. It makes us aware of the fact that the law has not developed in national isolation and can, therefore, not properly be understood under purely national auspices. It constitutes the foundation for scholarship in comparative law and paves the way towards re-establishing a European legal culture. The focus of these Clarendon lectures is on the ‘vital connection that ties the present to the past’ (Savigny) and on the link between legal history, modern legal doctrine, and comparative law. They aim to recreate an awareness of a fundamental intellectual unity based on a common tradition. Such awareness is of central importance to sustain the process of a Europeanisation of private law which we experience today. The three lectures consist of: ‘The End of an Era: Transformation of Scholarship in Roman Law’, ‘The Transition from Civil Law to Civil Code: Dawn of a New Era?’, and ‘A Change in Perspective: European Private Law and its Historical Foundations’.
Lucinda Miller
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199606627
- eISBN:
- 9780191731716
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199606627.003.0001
- Subject:
- Law, EU Law
This chapter unpacks the three perspectives from which the notion of Europeanization is usually addressed and, in this way, establishes a structure which informs the rest of the book. The chapter ...
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This chapter unpacks the three perspectives from which the notion of Europeanization is usually addressed and, in this way, establishes a structure which informs the rest of the book. The chapter reveals a central theme of the work which is that equating the Europeanization of contract law with harmonisation and homogeneity ignores the EU’s multi-layered architecture of the EU legal order and the intricate interplay between the various levels of governance at which contract law operates. The chapter also explores the nature of private law and the extent to which transnational (EU) contract law challenges private law’s classical features and traditional assumptions about its relationship with the nation state. Although the functionalist, policy-driven EU contract law unsettles orthodox understandings of the ‘private’ and the ‘public’, the chapter concludes by identifying a number of additional factors (e.g. Lex Mercatoria) that have contributed to the transformation of private law.Less
This chapter unpacks the three perspectives from which the notion of Europeanization is usually addressed and, in this way, establishes a structure which informs the rest of the book. The chapter reveals a central theme of the work which is that equating the Europeanization of contract law with harmonisation and homogeneity ignores the EU’s multi-layered architecture of the EU legal order and the intricate interplay between the various levels of governance at which contract law operates. The chapter also explores the nature of private law and the extent to which transnational (EU) contract law challenges private law’s classical features and traditional assumptions about its relationship with the nation state. Although the functionalist, policy-driven EU contract law unsettles orthodox understandings of the ‘private’ and the ‘public’, the chapter concludes by identifying a number of additional factors (e.g. Lex Mercatoria) that have contributed to the transformation of private law.
Robert D. Cooter and Ariel Porat
- Published in print:
- 2014
- Published Online:
- October 2017
- ISBN:
- 9780691151595
- eISBN:
- 9781400850396
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691151595.003.0001
- Subject:
- Law, Comparative Law
This book examines how the law of torts, contracts, and restitution can be improved by showing how private law reduces the cost of accidents, lubricates bargains, and encourages unrequested benefits. ...
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This book examines how the law of torts, contracts, and restitution can be improved by showing how private law reduces the cost of accidents, lubricates bargains, and encourages unrequested benefits. It considers the two pervasive rules of tort law that provide incentives for actors to reduce accident costs: strict liability and negligence. It also explains how contract law achieves effiency through the remedy of damages and how restitution law allows benefactors to recover gains that their beneficiaries wrongfully obtained from them. The book makes three central claims: misalignments in tort law should be removed; in contract law, promisee's incentives should be improved; and the law should recognize some right of compensation for those who produce unrequested benefits. Each claim is based on the desire to reform private law and to make it more effective in promoting social welfare.Less
This book examines how the law of torts, contracts, and restitution can be improved by showing how private law reduces the cost of accidents, lubricates bargains, and encourages unrequested benefits. It considers the two pervasive rules of tort law that provide incentives for actors to reduce accident costs: strict liability and negligence. It also explains how contract law achieves effiency through the remedy of damages and how restitution law allows benefactors to recover gains that their beneficiaries wrongfully obtained from them. The book makes three central claims: misalignments in tort law should be removed; in contract law, promisee's incentives should be improved; and the law should recognize some right of compensation for those who produce unrequested benefits. Each claim is based on the desire to reform private law and to make it more effective in promoting social welfare.
Michael A. Livingston, Pier Giuseppe Monateri, and Francesco Parisi
Mauro Capelletti, John Henry Meryman, and Joseph M. Perillo (eds)
- Published in print:
- 2015
- Published Online:
- May 2016
- ISBN:
- 9780804774956
- eISBN:
- 9780804796552
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804774956.003.0006
- Subject:
- Law, Comparative Law
This chapter continues the themes introduced in Chapter 5, emphasizing characteristic Italian attitudes such as the limited (primarily legislative) sources of law; a sharp division between public and ...
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This chapter continues the themes introduced in Chapter 5, emphasizing characteristic Italian attitudes such as the limited (primarily legislative) sources of law; a sharp division between public and private law; and the centrality of codes (especially the civil code) in the legal firmament. These features were changing by the late 1960s as a result of several developments, including the increased economic role of the state, the rise of the Constitutional Court, and the growth in fields that did not fit easily into existing categories.Less
This chapter continues the themes introduced in Chapter 5, emphasizing characteristic Italian attitudes such as the limited (primarily legislative) sources of law; a sharp division between public and private law; and the centrality of codes (especially the civil code) in the legal firmament. These features were changing by the late 1960s as a result of several developments, including the increased economic role of the state, the rise of the Constitutional Court, and the growth in fields that did not fit easily into existing categories.
Richard Hyland
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780195343366
- eISBN:
- 9780199867776
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195343366.001.0001
- Subject:
- Law, Comparative Law
This book studies the law governing the giving and revocation of gifts. Gift-giving is everywhere governed by social and customary norms before it encounters the law. Moreover, the giving of gifts ...
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This book studies the law governing the giving and revocation of gifts. Gift-giving is everywhere governed by social and customary norms before it encounters the law. Moreover, the giving of gifts takes place largely outside of the marketplace. As a result of these two characteristics, the law of gifts provides a lens through which to examine how different legal systems confront social practice. The law of gifts is well-developed both in the civil and the common laws. This book studies how the different civil and common law jurisdictions confront common issues. The legal systems discussed include for the common law those of England, the United States, and India, and, in the civil law, the private law systems of Belgium and France, Germany, Italy, and Spain. This book also provides a critique of a principal method of comparative law, which is a form of functionalism based on what is called the praesumptio similitudinis, namely the axiom that once legal doctrine is stripped away, developed legal systems tend to reach similar practical results. As this study makes clear, legal systems actually differ, not only in their approach and conceptual structure, but just as much in the results. More importantly, this study rejects functionalism in favor of an interpretist method derived from cultural anthropology.Less
This book studies the law governing the giving and revocation of gifts. Gift-giving is everywhere governed by social and customary norms before it encounters the law. Moreover, the giving of gifts takes place largely outside of the marketplace. As a result of these two characteristics, the law of gifts provides a lens through which to examine how different legal systems confront social practice. The law of gifts is well-developed both in the civil and the common laws. This book studies how the different civil and common law jurisdictions confront common issues. The legal systems discussed include for the common law those of England, the United States, and India, and, in the civil law, the private law systems of Belgium and France, Germany, Italy, and Spain. This book also provides a critique of a principal method of comparative law, which is a form of functionalism based on what is called the praesumptio similitudinis, namely the axiom that once legal doctrine is stripped away, developed legal systems tend to reach similar practical results. As this study makes clear, legal systems actually differ, not only in their approach and conceptual structure, but just as much in the results. More importantly, this study rejects functionalism in favor of an interpretist method derived from cultural anthropology.
WILLIAM LUCY
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780198700685
- eISBN:
- 9780191706745
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198700685.003.0001
- Subject:
- Law, Philosophy of Law
This introductory chapter situates the question about the nature of private law and the philosophical responses to it by doing two things. First, and somewhat predictably, by attempting to define key ...
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This introductory chapter situates the question about the nature of private law and the philosophical responses to it by doing two things. First, and somewhat predictably, by attempting to define key terms. It clarifies the meaning of ‘philosophy’ and then elucidates the meaning of ‘private law’. It then sketches the contours of contemporary philosophy of private law and the structure of the book.Less
This introductory chapter situates the question about the nature of private law and the philosophical responses to it by doing two things. First, and somewhat predictably, by attempting to define key terms. It clarifies the meaning of ‘philosophy’ and then elucidates the meaning of ‘private law’. It then sketches the contours of contemporary philosophy of private law and the structure of the book.
Hugh Collins
- Published in print:
- 2002
- Published Online:
- January 2010
- ISBN:
- 9780199258017
- eISBN:
- 9780191717857
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258017.003.0004
- Subject:
- Law, Constitutional and Administrative Law
This chapter explores the implications of analyzing private law as a regulatory technique. It analyzes the special strength of private law regulation of contracts compared to other styles of ...
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This chapter explores the implications of analyzing private law as a regulatory technique. It analyzes the special strength of private law regulation of contracts compared to other styles of regulation in terms of its ‘reflexive’ capacity. It then examines the structural weakness of private law as a regulatory instrument. The chapter focuses on detecting how these weaknesses in the capacity of private law can be overcome, and how private law itself is evolving mechanisms that enable it to address these weaknesses.Less
This chapter explores the implications of analyzing private law as a regulatory technique. It analyzes the special strength of private law regulation of contracts compared to other styles of regulation in terms of its ‘reflexive’ capacity. It then examines the structural weakness of private law as a regulatory instrument. The chapter focuses on detecting how these weaknesses in the capacity of private law can be overcome, and how private law itself is evolving mechanisms that enable it to address these weaknesses.
Peter North
- Published in print:
- 2004
- Published Online:
- January 2010
- ISBN:
- 9780199270583
- eISBN:
- 9780191710230
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199270583.003.0015
- Subject:
- Law, Legal History
By definition, private international law is fundamentally concerned with a trio of cross-border issues: Do the English courts have jurisdiction to hear a case? What law is the court to apply? And ...
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By definition, private international law is fundamentally concerned with a trio of cross-border issues: Do the English courts have jurisdiction to hear a case? What law is the court to apply? And will the judgments of the courts of another country be recognised in England? One of the interesting themes of the 20th century development of private international law in England was to see the extent to which this characteristic developed and with what consequences. A further significant thread was that of the relationship between public and private international law. This chapter looks at developments in private international law in England at the dawn of the 20th century, including jurisdiction of the courts, recognition of foreign judgments, range of cross-border issues, choice of law, and family law matters. Developments during the 20th century include law reform, interface of public and private international law, law on international trade, and role of the jurist. The legacy of émigré legal scholars from Germany in the field of private international law is also examined.Less
By definition, private international law is fundamentally concerned with a trio of cross-border issues: Do the English courts have jurisdiction to hear a case? What law is the court to apply? And will the judgments of the courts of another country be recognised in England? One of the interesting themes of the 20th century development of private international law in England was to see the extent to which this characteristic developed and with what consequences. A further significant thread was that of the relationship between public and private international law. This chapter looks at developments in private international law in England at the dawn of the 20th century, including jurisdiction of the courts, recognition of foreign judgments, range of cross-border issues, choice of law, and family law matters. Developments during the 20th century include law reform, interface of public and private international law, law on international trade, and role of the jurist. The legacy of émigré legal scholars from Germany in the field of private international law is also examined.
Robert D. Cooter and Ariel Porat
- Published in print:
- 2014
- Published Online:
- October 2017
- ISBN:
- 9780691151595
- eISBN:
- 9781400850396
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691151595.003.0013
- Subject:
- Law, Comparative Law
This book has advanced three central claims, each related to a different branch of private law. First, to achieve efficiency under negligence law, all foreseeable risks should be included when ...
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This book has advanced three central claims, each related to a different branch of private law. First, to achieve efficiency under negligence law, all foreseeable risks should be included when setting standards of care and awarding damages. Second, to achieve efficient contracts, the law should respond more to the promisee's incentives for cooperation and reliance. Third, the law should encourage unrequested benefits by making the beneficiaries compensate the benefactors more often, and by reducing the liability of injurers and breaching parties who externalize benefits. In support of these claims, the book has introduced novel principles such as total liability for excessive harm, anti-insurance, decreasing liability contracts, and the public goods theory of restitution. In conclusion, the book proposes three main legal reforms to improve private law in terms of promoting social welfare, such as removing misalignments in tort law or reducing the benefactor's liability for accidents.Less
This book has advanced three central claims, each related to a different branch of private law. First, to achieve efficiency under negligence law, all foreseeable risks should be included when setting standards of care and awarding damages. Second, to achieve efficient contracts, the law should respond more to the promisee's incentives for cooperation and reliance. Third, the law should encourage unrequested benefits by making the beneficiaries compensate the benefactors more often, and by reducing the liability of injurers and breaching parties who externalize benefits. In support of these claims, the book has introduced novel principles such as total liability for excessive harm, anti-insurance, decreasing liability contracts, and the public goods theory of restitution. In conclusion, the book proposes three main legal reforms to improve private law in terms of promoting social welfare, such as removing misalignments in tort law or reducing the benefactor's liability for accidents.
WILLIAM LUCY
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780198700685
- eISBN:
- 9780191706745
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198700685.003.0006
- Subject:
- Law, Philosophy of Law
This chapter examines the issue of wrongfulness in private law. While maintaining that wrongfulness is a crucial component of liability-responsibility in private law, it delineates its two dimensions ...
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This chapter examines the issue of wrongfulness in private law. While maintaining that wrongfulness is a crucial component of liability-responsibility in private law, it delineates its two dimensions and considers whether private law wrongs are anything more than ‘merely legal’ wrongs.Less
This chapter examines the issue of wrongfulness in private law. While maintaining that wrongfulness is a crucial component of liability-responsibility in private law, it delineates its two dimensions and considers whether private law wrongs are anything more than ‘merely legal’ wrongs.
William Cornish, Michael Lobban, and Keith Smith
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258819
- eISBN:
- 9780191718151
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258819.003.0007
- Subject:
- Law, Legal History
This chapter aims to note how both the essential constitutional doctrines and the major rules of private law could fare in the process of adapting the common law to its novel environments; for, among ...
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This chapter aims to note how both the essential constitutional doctrines and the major rules of private law could fare in the process of adapting the common law to its novel environments; for, among other things, that suggests the extent to which English common law was dependent upon its own circumstances of time and socio-political development.Less
This chapter aims to note how both the essential constitutional doctrines and the major rules of private law could fare in the process of adapting the common law to its novel environments; for, among other things, that suggests the extent to which English common law was dependent upon its own circumstances of time and socio-political development.
Hanoch Dagan
- Published in print:
- 2013
- Published Online:
- September 2013
- ISBN:
- 9780199890699
- eISBN:
- 9780199367689
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199890699.003.0005
- Subject:
- Law, Philosophy of Law
This chapter examines the relationship between social values and private law adjudication. It challenges the conventional, and diametrically opposed accounts of the relationship between these two, ...
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This chapter examines the relationship between social values and private law adjudication. It challenges the conventional, and diametrically opposed accounts of the relationship between these two, offered by private law autonomists and private law instrumentalists. Private law autonomists reject the significance of social values in private law while instrumentalists view private law as one of many forms of state regulation. It is argued that neither autonomist theory nor its instrumentalist counterpart provides a satisfactory account of private law. The normative infrastructure of any private law doctrine should be responsive both to (minor) bipolarity requirement on the one hand, and to social values appropriate to the pertinent category of human interaction on the other. This conclusion demonstrates the significance of the legal realist insight that law is necessarily about both science and craft. It also shows that a proper understanding of private law requires, as legal realism prescribes, to investigate the ways in which these external and internal perspectives on law can be accommodated, rather than focusing on only one perspective, to the exclusion of the other.Less
This chapter examines the relationship between social values and private law adjudication. It challenges the conventional, and diametrically opposed accounts of the relationship between these two, offered by private law autonomists and private law instrumentalists. Private law autonomists reject the significance of social values in private law while instrumentalists view private law as one of many forms of state regulation. It is argued that neither autonomist theory nor its instrumentalist counterpart provides a satisfactory account of private law. The normative infrastructure of any private law doctrine should be responsive both to (minor) bipolarity requirement on the one hand, and to social values appropriate to the pertinent category of human interaction on the other. This conclusion demonstrates the significance of the legal realist insight that law is necessarily about both science and craft. It also shows that a proper understanding of private law requires, as legal realism prescribes, to investigate the ways in which these external and internal perspectives on law can be accommodated, rather than focusing on only one perspective, to the exclusion of the other.
