Should property owners have a unique right to express their opinion just because they own property? While current law recognizes owners’ rights to express their voices in certain instances, it does not provide comprehensive and coherent answers to this question. This article provides an analytical framework for recognizing the owners’ right to voice as an independent property entitlement within the owners’ property bundle of rights and delineates its boundaries. Yet even when the owners’ voice is property-dependent, there is a difference between voice that facilitates the realization of another property entitlement (such as the right to exclude, use, or trade) and voice that is constitutive to ownership in and of itself. Only the latter instances justify recognition of the owners’ right to a voice as an independent property entitlement. By examining different branches of both tangible and intellectual property law, such as inheritance law, eminent domain, homeowners’ association law, zoning law, and copyright law, this article demonstrates the usefulness of the proposed analytical framework in explaining certain parts of the current law and suggests modifications of other parts.

Online sexist and racist hate speech has been condemned by many and condoned by most. In this paper we explicate in private legal terms the harms caused by sexist and racist hate speech. By centring the experiences of women of colour through coded testimonies we seek to rethink harm in tort in order to make visible private harms, which have remained largely invisible in European private law discourse. We highlight two aspects of harm that private law structurally fails to make visible: health harms and relational harms in the context of persistent and structural gender and racial injustice. In this paper, we argue that these systemic injustices must inform how we think of tortuous harms that arise from sexist and racist hate speech in bilateral relationships. In this article we centre the knowledge of women of colour targeted by SR hate speech within legal knowledge production and to the ways that the legal community thinks about tort law and its purpose. Conceptualising the tortuous harms of sexist and racist hate speech is crucial for access to private law pathways for redress and damages.

Can claimants choose between contract and tort claims arising on the same facts with different jurisdictional and/or choice-of-law consequences? While domestic legal systems generally recognise concurrent liability, commentators object that its extension to private international law would be unprincipled and would threaten the field's values. This, however, contrasts with the position in common law and under EU Regulations, where concurrent claims are generally recognised with only narrow limits. This article justifies concurrent claims in private international law, arguing that the same premises supporting concurrent liability in domestic law exist in private international law, and that no field-unique concerns foreclose it.

The Rights of Nature concept not only breaks with the anthropocentrism of existing (environmental) law; it also recognizes that nature has private interests, in addition to being of public interest. That is, whereas in classic sustainability thinking, the use of certain resources is allowed as long as public interests are not systematically/systemically harmed, rights of nature facilitate the protection of nature before planetary boundaries are transgressed. This recognition of nature as having private interests enables the framing of disagreements around ‘nature’ as matters of corrective justice, which renders the application of private legal doctrines more easily conceivable and arguably even necessary.

The contributions to this Symposium Collection showcase the viability of the intersection of private law and rights of nature. Firstly, it is necessary to research how existing private law will influence the effectiveness of rights of nature. Such an exercise is undertaken by Björn Hoops, who carefully assesses what rights for the German Black Forest would mean in terms of German constitutional property law. The mirror image of this approach is to explore what impact Rights of Nature will have on private law. Such an approach is taken by Alex Putzer and co-authors in their article on the transformation of land-ownership regimes after the introduction of Rights of Nature in Ecuador and Uganda. A third line of scholarship assesses the significance of Rights of Nature for private law theory: Visa Kurki proposes a new concept of legal personhood, prompting us to think through the meaning of statements like ‘a river is a legal person’.

New Private Law Theory (“NPLT”) offers itself as almost a natural fit for legal education and in particular—I argue—legal education in the climate crisis. Yet, the world climate hardly features in the book and its impressive resource list. Without claiming to fill any existing gaps in the book, the Article seeks to articulate NPLT’s relevance to sustainable legal education and at the same time tease out what facing the, social, fact of the climate crisis would add to NPLT’s already rich framework.

The suggestion that the new private law theory would have to stand the test of acceptance by the global legal community raises a question. Who is that “global legal community?” And does it go beyond Europe? Close reading demonstrates that the non-European world is present and hidden at the same time. It is present because much of the material presented, many of the theories discussed, have transnational materials. However, the non-European world is hidden at the same time because it remains unaddressed, marginalized, and ignored. Including the Global South would make necessary a more radical pluralization of private law theory. This opens up the possibility of new, very different idea of a global legal community that is more improbable but also more attractive.

This article reflects upon the challenges arising from a “pluralistic” approach to private law theory. Having distinguished the different meanings of the notion of “pluralism”, it focuses on epistemic pluralism and stresses the importance of an interdisciplinary stance. At the same time, it criticizes the emphasis put mainly on the dialogue with social sciences, clearly mirrored by the traditional organization of the ERC panels. Finally, it advocates a deeper and more critical engagement with the economic approaches to law.

In conversation with several chapters of Stefan Grundmann’s, Hans Micklitz’s, and Moritz Renner’s book on New Private Law Theory, this paper reflects on contributions that theories of communication and constitutionalization can make to our understanding of the changing role of private law in a globalizing world. More abstract ideals are checked against an assessment of recent judgments of Dutch courts in cases regarding oil company Shell’s responsibility for environmental pollution in Nigeria. Such theoretical readings of case law, it is held, in the spirit of New Private Law Theory, show new directions that private law theories may choose in order to understand and strengthen the private-legal framework for societal questions of our times.

While the concept of the ‘relational contract’ has been invoked in the courts with greater visibility and regularity in recent years, the doctrinal import of relational contract theory remains for the most part unclear to contract and commercial lawyers. This paper offers a broad framework for understanding the different ways through which relational theory might have an impact on contract doctrine going forward, and evaluates the promises and perils of doing so.

This article takes stock of legal pluralist thinking in European private law. In which ways have existing theories brought forward our understanding of lawmaking in European private law? Central to that debate are the competing rationalities of EU internal market law, on the one hand, and national, juridical systems of private law on the other hand. An analysis of norms, processes, and actors involved in lawmaking in European private law reveals a field that has matured, but that is now at the threshold of a re-evaluation and potentially a transformation in lawmaking from ordered to strong legal pluralism, with a greater role for private regulation.

Utilitarianism, the view that ‘actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness’, is no longer taken seriously either as a moral principle or as a theory of tort law. Rights-based theories appear to have won the day. The purpose of this paper is to counter this trend and demonstrate that utilitarianism is not the implausible straw man that its opponents have constructed. Relying upon a version of utilitarianism advanced by the philosopher RM Hare, I will demonstrate that distinguishing between two levels of utilitarian thinking can provide a credible explanatory and normative theory of tort law that is immune to many of the critiques usually levelled at this theory. My final conclusion is that if a rights-based theory of tort law is convincing, it may be one with utilitarian foundations.

This article considers the principle in the tort of private nuisance that the level of protection to which one is entitled from certain kinds of interference is sensitive to one's locality. It argues that the principle can be partly justified by the different costs of avoiding an interference which different localities create. However, it shows that, if the principle is to be justified in its entirety, a further justification is necessary. The article considers further justifications based on social rules, autonomy, cost minimisation, the idea of a system of equal right and an analogy to the rules on hypersensitive claimants. It largely rejects these explanations and concludes that, to the extent the locality principle requires individuals to bear substantial burdens that they would not have to bear were collective interests set aside, without compensation, it is difficult to justify.

Under the present law, policy-based reasoning plays a major role in the judicial determination of private law disputes. The propriety of this type of reasoning, however, has been the subject of much debate. Whilst many argue that there is nothing objectionable about using policy-based reasoning, others, particularly those who believe in a rights and/or corrective justice-based view of private law, argue that policy should play no role in the determination of private law disputes, and that courts should instead rely on what they call “principle”. This article will examine both sides of the debate, initially exploring what is actually meant by “principle” and “policy”, and then providing an overview of the primary arguments relied on in favour of both a policy- and principle-based approach to resolving private law disputes. Finally, a compromise between the two approaches, the so-called “pluralist” approach, will be examined.