Private Law and the State: Comparative Perceptions and Historical Observations

Rabels Zeitschrift Fuer Auslaendisches Und Internationales Privatrecht, Vol. 71, No. 2, 2007

Duke Law School Legal Studies Paper No. 136

49 Pages Posted: 5 Jan 2007  

Ralf Michaels

Duke University School of Law

Nils Jansen

University of Muenster

Abstract

The relation of private law to the state is one of the most complex aspects of the challenges posed for the law by Europeanization and globalization. It is not only distinct from that between public law and the state; it is also not the same in different legal systems. This article provides a historical and comparative overview of this relation in Germany and in the United States. It analyses the historical conditions and reasons for which the state became the ultimate source of authority for private law in Europe but remained largely without importance for doctrinal discussions and jurisprudential decisions within private law. It also identifies some factors that can explain largely different developments in the United States, where, despite the conceptual absence of the state within private law, private law was never seen to the same degree as autonomous from social policy. On the basis of these comparative and historical observations, the article concludes with more general, theoretical remarks on some of the problems that may be seen as core aspects of the relation of private law and the state.

Suggested Citation

Michaels, Ralf and Jansen, Nils, Private Law and the State: Comparative Perceptions and Historical Observations. Rabels Zeitschrift Fuer Auslaendisches Und Internationales Privatrecht, Vol. 71, No. 2, 2007; Duke Law School Legal Studies Paper No. 136. Available at SSRN: https://ssrn.com/abstract=955267

Ralf Michaels (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Nils Jansen

University of Muenster ( email )

Institut für Rechtsgeschichte
Universitätsstraße 14-16
Münster, D-48143
Germany

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