CRITICAL STUDIES IN PRIV ATE LAW

Transcription

1 CRITICAL STUDIES IN PRIV ATE LAW

2 Law and Philosophy Library VOLUME 16 Managing Editors ALAN MABE, Department of Philosophy, Florida State University, Tallahassee, Florida 32306, U.sA. AULIS AARNIO, Department of Civil Law, University of Helsinki, Vuorikatu 5c, SF-OOlDO Helsinki, Finland CONRAD D. JOHNSON, Department of Philosophy, University of Maryland, College Park, Maryland , U.S.A. Editorial Advisory Board ROBERT ALEXY, Lehrstuhlfur Offentliches Recht und Rechtsphilosophie, Christian Albrechts-Universitiit, Kiel GEORGE P. FLETCHER, School of Law, Columbia University ERNESTO GARZON VALDES, Institutfur Politikwissenscha/t, Johannes Gutenberg Universitiit Mainz JOHN KLEINIG, Department of Law, Police Science and Criminal Justice Administration, John Jay College of Criminal Justice, City University of New York NICOLA LACEY, New College, Oxford University NEIL MacCORMICK, Centre for Criminology and the Social and Philosophical Study of Law, Faculty of Law, University of Edinburgh ALEKSANDER PECZENIK, Juridiska Institutionen, University of Lund NIGEL SIMMONDS, Corpus Christi College, Cambridge University ROBERT S. SUMMERS, School of Law, Cornell University ALICE ERH-SOON T A Y, Faculty of Law, University of Sydney ERNEST J. WEINRm, Faculty of Law, University of Toronto CARL WELLMAN, Department of Philosophy, Washington University The titles published in this series are listed at the end of this volume.

3 THOMAS Wll...HELMSSON Department of Private Law, University of Helsinki CRITICAL STUDIES IN PRIVATE LAW A Treatise on Need-Rational Principles in Modern Law SPRINGER-SCIENCE+BUSINESS MEDIA, B.V.

4 Library of Congress Cataloging-in-Publication Data Wilhelmsson. Thomas [Social civilrătt. Englishl Crltical studies in private law a Treatise an need-rational principles in modern law / Thomas Wilhelmsson. p. cm. -- (Law and philosophy library ; v. 16> Rev. translation of: Social civilrătt Includes bibliographical references and index. ISBN ISBN (ebook) DOI / Contracts--Social aspects--finland. 2. Civi 1 law--social aspects--finland. 3. Critical legal studies. 4. Sociological jurisprudence. 1. Title. II. Series. KJT858.W '. 115' dc ISBN Printed an acid-free paper AII Rights Reserved 1992 Springer Science+Business Media Dordrecht Originally published by Kluwer Academic Publishers in 1992 Softcover reprint of the hardcover 1 st edition 1992 No part of the material protected by this copyright notice may be reproduced or utilized in any form or by any means, electronic or mechanical, inciuding photocopying, recording or by any information storage and retrieval system, without written permission from the copyright owner.

5 TABLE OF CONTENTS Preface Xl Chapter I. Introduction 1 1. Background: the Nordic discussion of alternative legal dogmatics 1 2. What is "alternative" legal dogmatics? 4 3. The problem The model The concepts of contract law Towards a "social private law" Perspective On Nordic law 16 Chapter II. "General principles" as the primary object of alternative studies Remarks on the terminology The significance of the general principles General principles as juridical arguments The significance of the conceptual apparatus The de lege ferenda significance of systematization The coherence and changeability of the general principles Contradictions within the law Causes of contradictions: an example Consequences for the systematization of the law The "legal quality" of the new general principles The relationship of the general principles to legal change Criticism and legitimation 49

6 vi Chapter III. Goals: new elements in a contract law of the welfare state The ideology of the welfare state and private law Towards a substantive or a "reflexive" justice? The welfare state as an obsolete ideology? On material rationality On reflexive rationality Material development as a precondition of reflexive justice Need-orientation as a goal Eriksson's need-rational argumentation Need-orientation and reflexive law Need-orientation and person-related norms Need-orientation and formal legal security 75 Chapter IV. On the juridical roles of contract law On juridical roles The materialization and role specialization of contract law Formal protective roles despite material rationality Function-related roles Person-related roles and their classification Ability-oriented person roles Need-oriented person roles: definitions 97 Chapter V. The concrete legal material - a Finnish example Introduction Need-orientation in family law and the law of succession Need-oriented person roles in contract and tort law. Systematics Need of housing, etc., in tenancy law Liability in damages and the needs of the parties Introduction. Need for maintenance Adjustment of damages, etc. 111

7 Introduction The general adjustment rule in the Act on Torts The employer's liability The employee's liability The liability of children and others The needs of the injured party Summary Adjustment within contractual relationships Adjustment of repayment of unjust enrichment Consequences of delays in payment Introduction The development of the legislation Hire-purchase and consumer credit Interest on delayed payments Registration of delayed payments Payment of insurance premiums Current proposed legislation Summary General clauses on the fairness of contracts The legislation Adjustment of unfair contract terms Regulation of unfair contract terms Need-oriented assessment of fairness in practice Summary. General principles of interpretation, etc. 143 Chapter VI. Towards need-oriented general principles Introduction Need-oriented principles as aids and as independent norms Relevant needs Needs of parties The needs of the work force "Financers" of social protection in the law of obligations Introduction 154 vii

8 viii 4.2. Enterprises', etc., social responsibility The owner's social responsibility Solidarity in the case of accidents Social community Need-orientation in different types of relationships Need-oriented law and the market The problem "Subsequent" needs Degree and guideline concepts Side issues Development of the new principles using constructed examples Introduction Need-oriented protection of creditors General Satisfaction of need of compensation Satisfaction of housing needs Need-oriented protection of debtors Introduction Private law/execution Legal consequences 176 Chapter VII. Social force majeure Introduction The causes of payment delay Solutions and proposals outside the Nordic countries Introduction Re-interpretation of traditional principles Statutes and draft bills A general principle of social force majeure Arguments for a "switching of principles" Terminology The scope of the doctrine Mandatory law? The prerequisites of social force majeure 197

9 5.1. Introduction Relevant occurrences The requirement on causal connection The requirement on unforeseeability The requirement on absence of fault Legal consequences of social force majeure General Possible legal consequences Consideration for the counter-party Mitigation of sanctions Dissolution of the contractual relationship by the debtor 213 Chapter VIII. Effects of an alternative doctrine Introduction The Problem An example: the case of social force majeure Prerequisites of an alternative practice Introduction Personal prerequisites Institutional prerequisites Legal-technical prerequisites Concluding remark 228 Bibliography 230 Finnish statutes 248 Abbreviations 250 Index 251 ix

10 PREFACE In discussions of legal theory in the Nordic countries in the early 1980s, one of the foreground questions concerned the possibilities of, and the limits to, a reorganizing, "critical", "alternative" legal dogmatics. The discussion tended to remain at a theoreticallevel, however, and concrete examples of this kind of dogmatics were few. The position was just such a one as described by the East German legal philosopher Hermann Klenner in criticizing the attempts in his own country to make methodological legal research independent of legal scholarship: he objects to "such a division of labour that some people know how to research (but cannot) and others can indeed do research (but do not know how)... " (Staat und Recht p. 57). I myself had in various contributions to the discussion stated the view that private-law research ought to be developed, among other ways, by placing greater weight upon the general principles. Such statements incur obligations: sooner or later one is in a position where one has to do something oneself, not merely tell others how. The Swedish-language original of this work (Social civilrtltt, 1987) represented an attempt to fulfil this moral obligation. The English version is not a direct translation of the Swedish original. Large parts have been rewritten: the theoretical parts have been expanded while parts of the concrete dogmatics have been cut out.

11 xii PREFACE The two works contain an attempt to adopt a new perspective upon certain topics of general importance within contract law. What is essential in them is their pervading theme: the possibility of developing the need-oriented elements in the general principles of contract law. Much of the detail could naturally be deepened and altered: it has nonetheless been my hope that the works are sufficiently well developed to permit scrutiny of the central ideas by the learned community and the legal audience. Ultimately, it is not worth improving the strain too much before one can see whether the seeds will grow at all. The law develops in small steps: too large a single step, and the legal scholar easily falls outside the field of what is legally possible. I wrote parts of the original Social civilrl1tt during a fairly long stay, in 1986, funded by the Deutsche Forschungsgemeinschaft and the Academy of Finland, at the Zentrum filr Europaische Rechtspolitik, University of Bremen. I wish to repeat here my thanks to the collaborators and staff of the department, and particularly to its Director, Professor Norbert Reich, for their support. In Finland I am indebted for the ideas developed in the book chiefly to the now defunct discussion circle for critical private law, with, among others, Nildas Bruun and Juha POyhOnen as members. The English-language version of the work has come about through the initiative of Professor Aulis Aarnio and with the help of his unfailing international contacts. This is but a small example of his tireless work for the benefit of Finnish legal theory. The translation has been carried out expertly and rapidly by Tim Crosfield, Stockholm. It has been funded by the Academy of Finland, the University of Helsinki and Oskar Oflunds stiftelse. The finishing work is performed within the large research project "Social Contract Law in Europe", also funded by the Academy of Finland. Helsinki, August 1990 Thomas Wilhelmsson