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Advanced Introduction to Private Law

Jan M. Smits

In this Advanced Introduction, one of the world's leading private law scholars takes the reader on an intellectual journey through the different facets and dimensions of the field, from the family home to Kuta Beach and from Thomas Piketty to Nina Hagen.
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Introduction: aims and contours of private law

Jan M. Smits

Extract

If someone were to ask what private law is about, a common answer would be that it deals with the rights and duties of individuals (including other private actors such as companies) with respect to one another. In this way, private law is usually contrasted with public law, which is about the organisation of the state and the relationship between the state and its citizens. We owe this grand division of the law into two main branches to the third-century Roman jurist Ulpian, who proclaimed private law to be about the well-being of individuals and public law to be about the common good.1

There is much to say about the accuracy of this distinction – which is at best a gradual one as no field of law can entirely neglect the public interest – but it still serves a useful purpose in structuring the law. At the core of private law lies the value that society wants to place upon people in pursuing their own individual goals without the need for authorisation by other people or the state.2 Private law thus allows people to shape their own legal relations with others by choice and to enforce the ensuing rights in court whenever necessary. While the public interest is actively upheld by the state (which has received special powers to make this possible), private interests are only created and maintained if private individuals wish to do so. To give examples from all five major branches of private law: private law facilitates...

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