Post by Henry Smith
This summer I spent a month visiting the Max Planck Institute for Foreign and International Private Law, in the group headed by Prof. Reinhard Zimmermann. It was an enjoyable and productive visit, and it prompts me to raise a comparative issue on this blog. In addition to the similarities and differences between common and civil law, which are sometimes overstated, there is a big difference between American and German private law scholarship, which is reflected in the law itself.
In the United States, Realism still exerts a strong influence, and in scholarship, functionalist perspectives analyzing law from an external perspective – often from some other discipline – are the norm. In other countries, doctrine and its internal development are taken much more seriously, in Germany in particular. (English law commentary is also much more doctrinal than here in the States, so this is not purely a matter of the civil law tradition.) Because it takes the structures and concepts of law seriously, even if from an interdisciplinary point of view, there are potentially some points of contact between the New Private Law and developments elsewhere in the world. For an excellent evaluation of the New Private Law (and a Harvard Law Review Symposium on that topic in 2011) from the point of view of German legal thought, our German-speaking readers will be very interested in this article, by Eike Hosemann, an L.L.M. alumnus of Harvard who works at the Max Planck Institute.
Hosemann raises some good questions about the New Private Law. Is it a unitary school of thought or more of a tendency or even a mood – as some would say Legal Realism itself was in its day. I think of it as a “movement” and agree with Hosemann that we have to wait to see how coherent it winds up being. He is right to note that within the umbrella of the New Private Law are both internal interpretivist and external functionalist streams – as one can see from this blog. Should a theory or explanation or justification of the law respond more to considerations of internal coherence? Or should a theory of law be judged on how well it makes legal results correspond with some external purpose, be it efficiency, fairness, conformance to wider cultural patterns or something else? Is the notion of causation in tort law a piece of a practice with its own internal logic, or does it serve the value of deterrence and other public policies? My prediction – and it is only that – is that as both internal and external perspectives in the New Private Law develop they will tend to converge from their different angles.
Even if this convergence of perspectives happens, the really open question is whether it will be of interest to those in legal traditions like Germany’s, in which an internal doctrinal analysis of the law holds sway. I think there is room for optimism on this score but that is a subject for another day.