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The Decline of Private Law : a Philosophical History of Liberal Legalism / Gonçalo De Almeida Ribeiro

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The Decline of Private Law : a Philosophical History of Liberal Legalism / Gonçalo De Almeida Ribeiro Th e Decline of Private Law A Philosophical History of Liberal Legalism Gon ç alo de Almeida Ribeiro HART PUBLISHING Bloomsbury Publishing Plc Kemp House , Chawley Park, Cumnor Hill, Oxford , OX2 9PH , UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2019 Copyright © Gonçalo de Almeida Ribeiro , 2019 Gonçalo de Almeida Ribeiro has asserted his right under the Copyright, Designs and Patents Act 1988 to be identifi ed as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright © . All House of Lords and House of Commons information used in the work is Parliamentary Copyright © . This information is reused under the terms of the Open Government Licence v3.0 ( http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3 ) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/ , 1998–2019. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Ribeiro, Gonçalo de Almeida, author. Title: The decline of private law : a philosophical history of liberal legalism / Gonçalo de Almeida Ribeiro. Description: Oxford, UK ; Chicago, Illinois : Hart Publishing, 2019. | Series: Law and practical reason | Based on author’s thesis (S.J.D. : Harvard Law School, 2012). | Includes bibliographical references and index. Identifi ers: LCCN 2018057166 (print) | LCCN 2018057921 (ebook) | ISBN 9781509907915 (Epub) | ISBN 9781509907908 (hardback) Subjects: LCSH: Civil law—Philosophy. | Liberalism—Philosophy. | BISAC: LAW / Contracts. Classifi cation: LCC K600 (ebook) | LCC K600 .R53 2019 (print) | DDC 340.5/601—dc23 LC record available at https://lccn.loc.gov/2018057166 ISBN: HB: 978-1-50990-790-8 ePDF: 978-1-50990-792-2 ePub: 978-1-50990-791-5 Typeset by Compuscript Ltd, Shannon Printed and bound in Great Britain by TJ International Ltd, Padstow, Cornwall To fi nd out more about our authors and books visit www.hartpublishing.co.uk . Here you will fi nd extracts, author information, details of forthcoming events and the option to sign up for our newsletters. P R E F A C E Th is book is based on the dissertation I successfully defended at Harvard Law School in September 2012, in partial fulfi lment of the requirements to be awarded a doctoral degree. As oft en happens when the author of an academic thesis is slow to move towards publication, I nearly let go of it. It was my good fortune that when I did make a move, in late 2015, I found in Hart Publishing, and particularly in its then Commissioning Editor Bill Asquith, enthusiastic support for the project. My appointment to the Constitutional Court in July 2016 delayed the process of publication even further, and indeed it threatened to stall it indefi nitely. Fortu- nately, in the summer of 2018 I was able to carry to the end the task of editing and polishing the manuscript. I am grateful to the current Commissioning Editor of Hart Publishing, Kate Whetter, and to Production Editor Linda Staniford, for their support in the latter stages of this stormy journey. Notwithstanding my belief that the manuscript withstood fairly well the test of time, this book is undoubtedly diff erent from the dissertation on which it is based. I rewrote the Prologue and the Epilogue; divided the last chapter of the thesis into two, rewriting a good deal of what is now chapter fi ve; excised the original text of material that struck me as digressive, pedantic, or downright silly; and revised the whole manuscript as thoroughly as limited time, energy and ability allowed. To be sure, the main thrust, the bulk of the writing and the background research are the same. But what I now off er to the reader is the leaner, neater and crisper work of a more mature scholar and writer. Over the years, a large number of generous scholars read parts of the manuscript in some form or shared with me their thoughts about themes and arguments in this book. On that score, I am indebted to Adilson Moreira, Ana Taveira da Fonseca, Andr é Salgado de Matos, Ant ó nio Ara ú jo, Ant ó nio Cort ê s, Ant ó nio Hespanha, Armando Rocha, Axel Gosseries, Catarina Santos Botelho, Daniel Vargas, Dennis Patterson, Elsa Vaz de Sequeira, Fernando S á , Filipa Calv ã o, Frank Michelman, Giovanni Marini, Hans-W Micklitz, Henrique Antunes, Holger Spamann, Hugh Collins, Ingo Sarlet, Jan Dalhuisen, Jo ã o Gama, Joaquim Pedro Cardoso da Costa, Jorge Azevedo Correia, Jorge Gonz á lez-J á come, Jorge Mattamouros, Jorge Pereira da Silva, Jos é de Sousa e Brito, JHH Weiler, Jos é Lamego, Jos é Teles Pereira, J ú lio Gomes, Karl Klare, Ken Winston, Lewis Sargentich, Louis Kaplow, Lu í s Pereira Coutinho, Lu í s Roberto Barroso, Marcos Keel Pereira, Maria-Rosaria Marella, Matej Accetto, Miguel Galv ã o Teles, Miguel Nogueira de Brito, Miguel Morgado, Mikhail Xifaras, Mitch Lasser, Neil Walker, Nimer Sultany, Nuno Garoupa, Patr í cia Fragoso Martins, Paulo Mota Pinto, Pedro Fortes, Pedro Garcia Marques, Pedro Lomba, Pedro Machete, Pedro M ú rias, Pedro Velez, Ravi Afonso Pereira, viii Preface Richard Fallon, Rita Lynce de Faria, Roni Mann, Rui Pinto Duarte, Rui Ramos, Talha Syed, Tiago Macieirinha, Tito Rendas, Vishaal Kishore and Wim Decock. Joe Singer and Mattias Kumm, who read the whole manuscript in its disserta- tion form and gave me extensive feedback, belong in a distinguished category of their own. I owe a special debt of gratitude to Jorge Braga de Macedo, Lu í s Barreto Xavier, Maria da Gl ó ria Garcia, Maria L ú cia Amaral, Miguel Poiares Maduro and Rui Medeiros, for having played, in one way or another, a decisive role in my academic career. I dedicate this book to Duncan Kennedy, my former teacher and supervisor. In spite of our occasional diff erences of thought and style, this book is, as careful readers will not fail to notice, a progeny of Duncan ’ s towering legacy in the fi elds of legal theory, legal history and comparative law. Th e dedication is my modest but heartfelt tribute to that intellectual pedigree, and to several years of captivating and enlightening mentorship. Gon ç alo de Almeida Ribeiro Lisbon TABLE OF CONTENTS Preface ......................................................................................................................... vii List of Figures............................................................................................................... xi Prologue: Th e Drama of Liberal Legalism .........................................................1 1. Th e Idea of Political Liberalism ................................................................ 14 I. Th e Liberal Hypothesis .............................................................................14 II. Majoritarian Government ........................................................................20 III. Democratic Legitimacy ............................................................................22 IV. Th e Trouble with Majoritarianism ..........................................................26 V. Reasonable Pluralism ...............................................................................30 VI. Freestanding Principles ............................................................................36 VII. Politics and Justice ....................................................................................40 VIII. Political Liberalism ...................................................................................46 IX. Pluralism within Liberalism ....................................................................53 2. Kant and the Will Th eory ..........................................................................63 I. Why Kant? ..................................................................................................63 II. Kant’s Moral System ..................................................................................70 III. Moral Value in the Groundwork ..............................................................80 IV. Th e Nature of Recht ...................................................................................84 V. Th e Rightful Condition ............................................................................92 VI. Private Right ..............................................................................................97 VII. Th e Will Th eory .......................................................................................101 VIII. Norm and Exception ..............................................................................111 3. Th e Rise of Classical Private Law ............................................................ 119 I. From Th eory to Ideology .......................................................................119 II. Reception of the Will Th eory ................................................................120 III. Rise and Decline of Iurisprudentia
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