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Reconstructing American Legal Realism & Rethinking Private Law Theory$
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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

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The Limited Autonomy of Private law

The Limited Autonomy of Private law

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

Hanoch Dagan

Oxford University Press

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

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