Jump to ContentJump to Main Navigation
Reconstructing American Legal Realism & Rethinking Private Law Theory$
Users without a subscription are not able to see the full content.

Hanoch Dagan

Print publication date: 2013

Print ISBN-13: 9780199890699

Published to Oxford Scholarship Online: September 2013

DOI: 10.1093/acprof:oso/9780199890699.001.0001

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2019. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see www.oxfordscholarship.com/page/privacy-policy).date: 21 April 2019

The Limited Autonomy of Private law

The Limited Autonomy of Private law

Chapter:
(p.104) Chapter 5 The Limited Autonomy of Private law
Source:
Reconstructing American Legal Realism & Rethinking Private Law Theory
Author(s):

Hanoch Dagan

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199890699.003.0005

This chapter examines the relationship between social values and private law adjudication. It challenges the conventional, and diametrically opposed accounts of the relationship between these two, offered by private law autonomists and private law instrumentalists. Private law autonomists reject the significance of social values in private law while instrumentalists view private law as one of many forms of state regulation. It is argued that neither autonomist theory nor its instrumentalist counterpart provides a satisfactory account of private law. The normative infrastructure of any private law doctrine should be responsive both to (minor) bipolarity requirement on the one hand, and to social values appropriate to the pertinent category of human interaction on the other. This conclusion demonstrates the significance of the legal realist insight that law is necessarily about both science and craft. It also shows that a proper understanding of private law requires, as legal realism prescribes, to investigate the ways in which these external and internal perspectives on law can be accommodated, rather than focusing on only one perspective, to the exclusion of the other.

Keywords:   social values, private law adjudication, instrumentalism, autonomist theory, legal realism

Oxford Scholarship Online requires a subscription or purchase to access the full text of books within the service. Public users can however freely search the site and view the abstracts and keywords for each book and chapter.

Please, subscribe or login to access full text content.

If you think you should have access to this title, please contact your librarian.

To troubleshoot, please check our FAQs , and if you can't find the answer there, please contact us .