'New Private Law Theory' as a Mosaic: What Can Hold (Most of) It Together?

German Law Journal (2022 Forthcoming)

22 Pages Posted: 9 Dec 2021

See all articles by Hanoch Dagan

Hanoch Dagan

Tel Aviv University - Buchmann Faculty of Law

Date Written: November 30, 2021


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 short Essay 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.

Suggested Citation

Dagan, Hanoch, 'New Private Law Theory' as a Mosaic: What Can Hold (Most of) It Together? (November 30, 2021). German Law Journal (2022 Forthcoming), Available at SSRN: https://ssrn.com/abstract=3974683 or http://dx.doi.org/10.2139/ssrn.3974683

Hanoch Dagan (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv, 69978
+972 3 640 7302 (Phone)

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