The Decline of Private Law: A Philosophical History of Liberal Legalism

Description

This book is a large-scale historical reconstruction of liberal legalism, from its inception in the mid-nineteenth century, the moment in which the jurists forged the alliance between political liberalism and legal expertise embodied in classical private law doctrine, to the contemporary anxiety about the possibility of both a liberal solution to the problem of political justification and of law as a respectable form of expert knowledge. Each stage in the history is a moment of synthesis between a substantive and a methodological idea. The former is the liberal political theory of the period, purporting to provide a solution to the problem of political justification. The latter is a conception of legal method or science, supposedly vindicating the access of the expert to the political choices embodied in the law. Thus, each moment in the history of liberal legalism integrates a political theory with a jurisprudential conception. Although it reaches the unsettling conclusion that liberal legalism has largely failed by its own standards, the book urges us to avoid quietism, scepticism, or cynicism, in the hope that a deeper understanding of the fragility of our values and institutions inspires a more thoughtful, broadminded, and nurtured citizenship. Preface Table of Contents List of Figures Prologue: The Drama of Liberal Legalism 1. The Idea of Political Liberalism I. The Liberal Hypothesis II. Majoritarian Government III. Democratic Legitimacy IV. The Trouble with Majoritarianism V. Reasonable Pluralism VI. Freestanding Principles VII. Politics and Justice VIII. Political Liberalism IX. Pluralism within Liberalism 2. Kant and the Will Theory I. Why Kant? II. Kant's Moral System III. Moral Value in the Groundwork IV. The Nature of Recht V. The Rightful Condition VI. Private Right VII. The Will Theory VIII. Norm and Exception 3. The Rise of Classical Private Law I. From Theory to Ideology II. Reception of the Will Theory III. Rise and Decline of Iurisprudentia IV. Modern Legal Science V. The Savignian System (i): Substance VI. The Savignian System (ii): Method VII. The Triumph of Formalism VIII. Classical Private Law 4. The Socialisation of Private Law I. The Social Question II. The Social Jurists III. The Emergence of Social Law IV. The Social in Private Law V. The Critique of Formalism VI. Teleological Jurisprudence VII. Culpa in Contrahendo VIII. Abuse of Rights 5. The Politicisation of Private Law I. On 'Legal Realism' II. The Collapse of Private/Public III. Conflicting Considerations IV. Rules and Principles V. The Indeterminacy of Doctrine VI. The Indeterminacy of Rules VII. The Indeterminacy of Grounds VIII. Ideology in Private Law Epilogue: The Migration to Constitutional Law Appendix: A Foray into Methodology Bibliography Index