Private Law Theory

Abstract:
‘The Social Role of Private Law’ was a public lecture given by Otto von Gierke in 1889 as a leading critique of the codification of private law in the German Civil Code. Although highly influential in German legal theory and history, this is the first English translation of Gierke’s work. The English translation is given in parallel to the original German, and is preceded by an introductory essay, ‘Social Law and Social Justice’. Over 120 years after Gierke’s original lecture, the concept of ‘social law’ is developing a rival taxonomy to overtake the increasingly problematic public-private divide, including the subcategories of obligations, property and persons. On foundations laid by Gierke and contemporaries such as FW Maitland or OW Holmes, the theory of social law has become increasingly well understood. This has been seen through realist jurisprudence, the embracing of functional analysis, and dedicated legal journals. Today, the idea of social law sees the need for all human institutions, in a democratic society, to be founded on the pursuit of social justice.

McGaughey, Ewan, The Social Role of Private Law (October 31, 2016). King’s College London Law School Research Paper No 2017-12.

First posted 2017-03-07 07:12:26