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Summary Private Law in a European and International Context
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PLEIC - QuestionsWeek 1 2
J. Weinrib 3
L. Burgers, M. Barth, C. Mak 5
Rafal Manko 6
Ch. U. Schmid 9
Questions: 11
Week 2 13
Marco. B.M. Loos 15
Jaap Baaij 17
Hannes Unberath, Angus Johnston 19
Questions 21
Week 3 23
C. Mak 24
H. Collins 26
Questions 28
Week 4 30
A. Davola 32
Questions 34
Bundeskartellamt vs. Facebook (Meta) 35
Planet 49 „informed consent“, „pre-ticked boxes“ 35
Week 5 36
Milieudefensie vs. Shell 37
M. Hinteregger 38
Question 41
Week 6 44
David J. Vogel 45
Beate Sjåfjell and Jukka T. Mähönen 47
Questions 49
Week 7 50
Katharina Pistor 51
Marija Bartl 53
Case Doe I vs. Wal-Mart Stores (2009, US court of appeals 9th circuit) 56
Questions 57
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,Week 1
The evolving concept of private law
the idea of private law:
In the Weinrib reading, we find what we may consider a classical conception of private law, which
focuses foremost on the relationship between the parties rather than any societal issues that such
a relationship may raise/contribute to. It is then this classical conception of private law that has
been both historically challenged, due to the raise of the labour movement and social democracy,
as well as currently under new scrutiny in relation to the contemporary societal challenges such as
digitalization or sustainability. These changes may be seen as functionalism (Weinrib) or
instrumentalization of private law (Schmid).
Europeanisation of private law
The traditional concept of private law has not been challenged only by societal developments, but
importantly also by European integration, as well as (be it to a smaller extent) by globalization. The
European integration has been in fact one of the most transformative forces in the field of private
law. In this first class we will outlines some of the basic concepts related to the Europeanisation of
private law, sketching the European specific dynamics of instrumentalization (Manko, Schmid).
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,J. Weinrib
—> The idea of private law
Weinrib presents what we may consider as a classical conception of private law, which focuses
foremost on the relationship between the parties rather than any societal issues that such a
relationship may raise/contribute to.
1. What is the main point that the author aims to deliver?
- focussing on the relationship between the parties rather than any social issues
- law should be understood from within, „the purpose of private law is private law („private law
is like love“)
• contrary: functionalism: Comprehension of law through its goals —> author denies this
- Private law as a self-understanding enterprise
2. What arguments are brought forward in the text to support the position of the author?
- against functionalism:
• not so much a theory of private law as a theory of social goals into which private law may
fit or may not fit
• The functionalist is concerned with whether the results of cases promote to the postulated
goals
• Functionalist approaches have limited scope
- They align external purposes merely with the results of cases and are indifferent to the
specific juristic reasoning and doctrinal structure from which these results emerge
- An internal approach, in contrast, considers this reasoning, strucutre, and process to be
crucial indicia of the law's self-understanding.
• In contrast to functionalist approaches, it illuminates private law without erasing its
juridical character or reducing legal thinking to an alien discipline
- Private law is an exhibition of intelligence that operates through reflection on its own
intelligibility:
• private law strives to realize a self-adjusting harmony of principles, rules and standards
• as an object of understanding, private law presents a set of features that are the focus of
intellectual effort
• operates through reflection on its own comprehensibility and develops over time
- private law values and tends towards its own coherence
• coherence implies integration within a unified structure
Bella, Pelin, Ruben 3 von 57
, 3. How does the position of this author fit into the larger academic debate? (definition/
identification: of the academic debate?)
- academic debate: The evolving concept of private law
- the author claims that private law evolves through itself
• strives for coherence (closed system)
• adjusting itself
- different view on private later
- rather philosophical and emotional than functionalistic (to be further adjusted)
4. Think of at least one question you have in relation to this text
- how that this effect legal real life cases?
- how does the view of Weinrib on private law affect real cases? How would he decide as a
judge certain cases? Is there any example?
--> free court conviction (in german civil processes judges are free in their decisions / Judges
are free in their convictions)
5. Are you convinced by the author and why (not)?
- agree? (-), he’s reductive himself with ignoring other influences
• you can’t stop a connection between politics and law (legislator)
• its not a pure system
• you have to consider other things
- agree? (+)
• good to see law as a more complex phenomena which includes philosophical and
emotional aspects
• not only facts (contrary (negativ Beispiel): case law USA)
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