Methodology in Private Law Theory

by Thilo Kuntz and Paul B. Miller

• ISBN13: 9780198885306
• ISBN10: 019888530X
• Format: Bound Book
• Copyright: 2024-02-01
• Publisher: Oxford University Press Academic UK

Summary

Methodology in Private Law Theory: Between New Private Law and Rechtsdogmatik represents a first-of-its-kind dialogue between leading lights in German and American private law theory. The chapters in this volume build upon established traditions of scholarship in German private law and harness resurgent scholarly interest in private law in the United States, inviting readers to question how private law functions on both sides of the Atlantic.

In the context of the cross-fertilization of legal scholarship, the transnationalization of law, and the historical ties between US and German debates on methodology, the volume encourages reasoned engagement with private law doctrines and institutions. It further invites reflexive consideration of diverse ways in which methods of legal analysis influence social practices where law is given, received, asserted, and negotiated. Leading methodologies of the past and present are subject to fresh elucidation and insightful criticism, including those of legal formalism, legal conceptualism, legal realism, law and economics, legal philosophy, legal history, empirical jurisprudence, Rechtsdogmatik, and other varieties of doctrinal scholarship.

Providing the necessary background for understanding different legal cultures and traditions in private law, Methodology in Private Law Theory is a must-read for anyone working within the field.

Author Biography

Thilo Kuntz, Professor of Law, Heinrich-Heine-University D"usseldorf, Paul B. Miller, Professor of Law and Associate Dean for International and Graduate Programmes, Notre Dame Law School

Thilo Kuntz is a Professor of Law at Heinrich-Heine University D"usseldorf (HHU) in Germany, where he holds the Chair in Private Law, Commercial and Corporate Law. In addition, he is Managing Director of HHU's Institute for Corporate Law. He previously held chairs at Bremen University and Bucerius Law School, Germany, and has held a visiting appointment at Notre Dame Law School. His research interests include private law theory, fiduciary law, corporate finance, and corporate governance, with an emphasis on comparative, economic, and historical analysis.

Paul B. Miller is Professor of Law and Associate Dean for International and Graduate Programmes at Notre Dame Law School, where he also serves as Director of the Notre Dame Programme on Private Law. Miller taught previously at McGill University in Montréal and has held visiting appointments at Bucerius Law School, the University of Melbourne, Université Paris II - Panthéon-Assas, Peking University, and Tel Aviv University. Miller is a private law theorist whose work focuses primarily on philosophical questions in equity, fiduciary law, trust law, and corporate law. His books include Philosophical Foundations of Fiduciary Law, The Oxford Handbook of Fiduciary Law, and Civil Wrongs and Justice in Private Law. He is a member of the Editorial Board of the American Journal of Jurisprudence and serves (with John Oberdiek) as the General Editor for Oxford Private Law Theory and the associated series, Oxford Studies in Private Law Theory, both published by Oxford University Press.

Table of Contents

Introduction, Thilo Kuntz and Paul B. MillerI - Methodology in Private Law Theory: General Perspectives1. A Genealogy of Private Law Epistemologies, Marietta Auer2. Exploring the Paradigms of Private Law, Johanna Croon-Gestefeld3. When Private Law Theory is Close Enough, Andrew S. Gold4. Understanding Private Law, Felipe Jiménez5. Against Essentialism in Private Law: Private Law as an Artifact Kind, Thilo KuntzII - New Private Law and Rechtsdogmatik: Formalism and Conceptualism in Private Law Theory6. In Defence of Ambiguity: Towards a Shandean Way for Legal Methodology, Ino Augsberg7. The Nature and Value of Conceptual Legal Scholarship, Christian Bumke and Fritz Schäfer8. The Point of View of Doctrinal Legal Science, Nils Jansen9. Formalism, Legality, and the Rule of Law, Paul B. Miller10. Private Law Formalism and Jurisprudential Method, Jeffrey A. Pojanowski11. How Can You Have Law Without Lawyers? Legal Formalism, Legality, and the Law Governing Lawyers, W. Bradley WendelIII - Empirical, Philosophical, and Normative Approaches to Private Law Theory12. The Place of Philosophy in Private Law Scholarship, John C.P. Goldberg and Benjamin C. Zipursky13. The Minimal Morality of Private Law, Lorenz Kähler14. Rights Without Standing: On the Nature of Equitable Rights, Larissa Katz15. The Critical Potential of Doctrinal Analysis, Paul Krell16. Private Law Theory from an Empirical Perspective, Kevin Tobia