Private Law and the State: Comparative Perceptions and Historical Observations

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.