Iscflul.9.2.18

https://doi.org/10.22364/iscflul.9.2.18 | 207-220 | PDF

Frank L. Schaefer, Dr. iur., LL.M., Professor
Freiburg University, Faculty of Law, Germany

The Non-Social Purpose of Private Law: A Reply to Otto von Gierke

Key words: Gierke, legal history, private law theory, social law, system of law

Summary
The reasons presented by Otto von Gierke in his famous speech “The Social Purpose of Private Law” for a hybridisation of private law towards a social private law are not convincing anymore. Private law is not intrinsically social. Rather, the protection of the weaker party, for example through redistribution, is attributed to public law. Therefore, the present social private law must be broken down into its two original components: free and market-oriented private law and public social law. Only if both spheres of law are principally, conceptually and systematically separated from each other, they are capable of playing out their full capacity.

The current paper has been published in the second collection of research papers in conjunction with the 9^th International Scientific Conference of the Faculty of Law of the University of Latvia “Revisiting the Limits of Freedom While Living Under Threat. II”, 9–10 November 2023. Riga: University of Latvia Press, 2024. 232 pages.