The Idea of Private Law

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Of course it is possible to define it that way, but then all global treaties that deal with private law would create European private law. Moreover, if a particular country were to create private law rules that qua content would apply all over Europe, these rules would count as European private law. Use of the territorial scope condition to identify European private law would be too inclusive. The same holds for territorial limitations that are given by the conditions of the private law rules themselves, because these conditions seldom mention territorial limitations and the rules without territorial limitations would then on a large scale be rules of European private law.

Final Report Summary - ERPL (European Regulatory Private Law)

Is it possible that precisely those rules are rules of European private law which were created by some agent with legislative powers on the European level most likely an organ of the European Union? If that were the case, only explicitly created law can be European private law and that would exclude all customary law and therefore most likely also soft law. Perhaps we should look at rule-enforcing agents. The test would then become which rules can succesfully, if applicable be invoked before European courts.

However, that is insufficiently precise. Are we talking about national courts, or special European courts, or a combination of the two? If only specialised European courts are taken into account, there would only be European private law on topics that fall under the jurisdiction of these courts. If other national courts are also taken into account, it becomes difficult to distinguish between European and other private law. Admittedly the above survey of possibilities is very brief, perhaps too brief.

However, the general picture is in my opinion revealing. Whatever test we apply, the test by itself leads to results which are either too broad or too narrow.

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In the past, and then in relation to national state-law, the situation would have been different. For some centuries there has been a coincidence of criteria: most law was created by state organs, applied by courts that belonged to the same states, and applied to cases on the territories of those states.

Of course, even then there were exceptions to this coincidence of criteria, but these exceptions were … well: exceptional. If such a coincidence occurs, we can speak of a national legal system. The present situation in Europe is characterized by the fact that such national legal systems fall apart. Legislative bodies make rules that are applied by courts of other countries Private International Law.

Rules may be applicable to heterogeneous sets of agents, defined by the nationality of the agents e. Germans , by their religions e. Catholics , but also by the topic of the rules e.

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Courts apply rules that were created by sub national legislators on different levels , supranational legislators, courts of many different kinds and hierarchical levels , or which were not created at all customary law in all kinds of traditional and modern guises. It may be tempting to stick to the old category of legal systems and think of European law as one legal system next to many others. However, the message that needs to be driven home — whether one likes it or not — is that with the disappearance of the coincidence between legislation, scope and enforcement of rules, the very notion of a legal system has lost much of its original attractiveness.

I hope to show how this works by discussing particular cases. In the following, I will no longer argue the point abstractly, but show that this view of law enables us to make sense of what goes on in private law. However, a few general points related to my thesis need to be clarified beforehand. I do not claim that all law is social interaction. Law depends on social interactions in two ways: social interactions are a source of law, and social interactions support the normative force of legal norms. That social interactions are a source of law primarily means that not all law is enacted law: there are implicit forms of law, which could be termed interactional law.

This means that law is not reducible to interactions, although it may in part be implicit in social practices. Social interactions support the normative force of law, whether it is explicit or implicit, by providing a context of practices which make sense of legal norms. As Postema argues, legal norms need to be roughly congruent with practical social expectations. Enacted or formal law i. If I have no reason to believe that you will abide by a formal rule, my reason for abiding by it is diminished.

Therefore, I do not claim that enacted private law is meaningless, far from it, but that there are numerous openings in the formal system of private law that make moral values and social interactional norms an integral part of it. Although a system of purely enacted private law is theoretically imaginable, this would not be a viable system in normal societies. Such a view is not only found in interactionism, it also has affinities with forms of legal hermeneutics that are current in the continental doctrine. My main inspiration from legal doctrine is the work of the Dutch private law theorist, Paul Scholten, who highlights the continuity between moral and legal normativity in judicial interpretation and an open, contextual approach in which facts and norms are given meaning simultaneously.

Scholten Zwolle: Tjeenk Willink, How does the connection with social practices play out in the domains of tort and contract? Let us first consider tort law. For Dutch lawyers, the facts of the case I presented at the beginning may ring a bell. Another standard case of Dutch tort law is Kelderluik , a case about a cellar trapdoor that was left open. In this case the Dutch Supreme Court gives a list of pointers for the assessment of a duty of care in dangerous situations, such as the gravity of the danger, the likelihood that people will be careless, the difficulty of taking precautions, etc.

It is important to note that the Supreme Court did not set a norm, but gave a series of criteria to assess tort situations. The norm it uses, first formulated by a court in , and codified in the Dutch Civil Code in , is an open one: people commit a tort when they do not act in accordance with the norms of care in society.

The Idea of a Private Law Society - Hans-Hermann Hoppe

Such a norm opens up the formal system to implicit norms tied to social and moral expectations. I have a moral responsibility not to create dangerous situations, while you have a responsibility to be careful. What that entails exactly will depend on the normal ways of doing things in certain circles and social life more generally.

There are numerous examples of tort cases that show how a particular assessment of the social and factual context is decisive for awarding a claim about an alleged tort. Although my analysis draws primarily on Dutch cases, a very similar picture arises when cases from other legal traditions are examined.


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In English and American law, for instance, tort liability is based on the breach of a duty of due care, which resembles the duty of care in Dutch law. The classic Scottish case of Donoghue v. Stevenson is a good example. Mrs Donoghue drank a bottle of ginger beer in which the remains of a dead snail were contained. Because a friend had bought the bottle for her, there was no direct or indirect relation between Stevenson, the producer of the ginger beer, and Mrs.

The House of Lords ruled that Stevenson had nonetheless breached a duty of care he owed to consumers of his ginger beer. Stevenson [] UKHL Here too, the expectations prevalent in social practice are the main determinant of tort liability. The discussion of tort law shows that one of the main links between enacted law and interactional law is the use of open formulations of key norms.

In the literature, such norms are sometimes referred to as open norms, but the more common terminology is that of standards as opposed to rules. The discussion of rules and standards is relevant to the argument here, but has a much broader scope. The distinction between rules and standards also echoes the debate initiated by Ronald Dworkin on rules versus principles.

The link between the two debates is forged by seeing standards as requiring an evaluative judgment by the interpreter of the standard, which resembles the moral dimension of principles. Since my point here is not so much to prove that principles are part of the law, but rather to argue that a variety of norms prevalent in social practices form interactional law, I will concentrate on the openness towards social practices that is implied in the use of standards in private law.

Although not mentioned much in the rules versus standards debate, such practical and evaluative judgments depend on the interactional practices in which people are engaged. For example, when playing sports, people expect injuries to occur more frequently than in daily life, and will therefore also expect liability for damage in sports to be limited.

Whereas tort law shows the openness of private law, through the use of standards and the importance of social context, quite clearly the case is more difficult to make for contract. I do claim that the openness of contract law is similar to that of tort law, but this first requires a discussion of the interactionist idea of contracts. As explained above, in an interactionist framework two forms of law are recognized: explicit, enacted law and implicit, interactional law.

A contract, however, has a hybrid quality: it contains explicit rules laid down by the contractors themselves. On the one hand, it resembles enacted law, because of the explicit rules that are made by the contractors; on the other hand, it seems interactional because it is a horizontal interaction between two individuals without involvement of official authorities.

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Ernest J. Weinrib, The Idea of Private Law - PhilPapers

Even this picture needs to be made more complex. The vertical and horizontal dimensions are not stable: Fuller points out that contract is not as horizontal as it might seem, because it often involves unequal bargaining power which may effectively allow one of the parties to set the contractual rules. These considerations imply that we cannot say that contracts, simply because they are made on the basis of mutual consent of persons, are automatically a form of interactional law.

The starting point must rather be that contracts appear to be formal law in a particular relationship.

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Rather than use all the rules of the Civil Code, parties to a contract partly create their own rules. However, this is not the full picture of what goes on in contractual relationships. The formal written rules of the contract only go so far. Those rules are part of a broader relationship in which things are expected of the other party that are not laid down in the written rules. Again, an example from Dutch law helps to clarify the point. A case at least as well known to Dutch scholars as Kelderluik is that of Haviltex. It is a contract case in which two business owners contract about a piece of machinery that one has produced and the other needs for his horticultural enterprise.

They make a contract stating that the buyer of the machine has the right to return it before a certain date at a fixed price. The buyer wishes to do so, but the seller refuses to accept the appeal to the contractual clause because he says no reasons were given for returning the machine. Predictably, the buyer held that giving reasons was not a requirement laid down in the contract. The Supreme Court found for the seller because, it stated, it is not just the text of the contract that counts but also the interpretation parties could reasonably give to it in light of the reasonable expectations contractual parties may have of each other.

Given the particular relationship in the case, and the limited legal knowledge of the seller, it was reasonable of him to expect a reason for the termination of the contract. This case is one of the central precedents in Dutch contract law, providing the main doctrine for the interpretation of contracts. An example from English law illustrates the point differently.

The case of Williams v. Roffey Brothers and Nicholls Contractors Ltd concerns a carpenter working for a firm of contractors renovating twenty-seven apartments. During the course of the project, it became clear that the carpenter could not complete his work on time for the fixed price, and the contractors agreed to pay an extra amount in instalments to enable him to finish the work on time. The carpenter ceased work when payments were not made according to the revised contract.


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  6. In court, the contractors took the position that the revised contract was unenforceable. Their defence rested on the doctrine of consideration, claiming that there was no new consideration on the part of the carpenter because there was no change of the work to be done. The court dismissed the appeal, arguing that the contractors had in practice secured a benefit, i. The doctrine of consideration is not relevant to the point I want to make, but the case also shows that the court takes the business relationships and ensuing expectations of the two into account.

    The contractors knew that the carpenter was in financial difficulties because the fixed price was too low, and were prepared to do something in order for him to stay in business. This can be interpreted as an appeal to an underlying norm that the deal needed to be economically viable for both.


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    7. Here, as in the Dutch Haviltex case, the context of interactional norms is crucial to determine the precise nature of the contractual agreement. Overall, these cases point to the fact that the formal law of legislatures and courts does not function in splendid isolation; it is linked to social interactions and its force partly depends on what people may expect from each other in that interactional setting. In the contract setting, the point about the need to consider the interactional context of formal rules becomes very clear when we consider empirical studies of contracts.

      They are also very hesitant to go to court to settle their disputes.