Between Facts and Norms - Contributions to a ... - Blogs Unpad

397Paradigms of Lawdifferentiated and more concrete law that is immediately bindingfor participants in a private-legal relationship. It is in principleincumbent on the legislature to attend to the various modificationsrequired to realize the influence ofbasic rights on private law."16 Asthis process was accelerated after the Second World War throughthe adjudication of the Federal Constitutional Court, neithercomplaints about the disintegration of the legal corpus nor attemptsat redefinition sufficed to fit the changed legal situationinto the received categories. Already on the defensive, civil-lawjurisprudence was stimulated particularly by these developmentsto reflect on those nonlegal background assumptions that hadprovided tacit underlying premises for the now-wavering divisionbetween private and public law.Since the nineteenth century, a similar social transformation canalso be observed in the law of societies with other legal traditionsbut comparable to Germany. In these countries, too, such changesprovided an incentive for studying, primarily in private law, theeclipse and replacement of the liberal legal model by the socialwelfaremodel.17 The welfare state obviously posed a challenge forprivate law, even apart from the reasons peculiar to the developmentof German law. We will see that the social changes leading toan awareness of the paradigm shift make it necessary to conceivethe relation between private and political autonomy no longer as anopposition but as a nexus of reciprocal connections. This taskadmittedly confronts civil law, which is tailored to the negativestatus of legal subjects, with greater problems than it does publiclaw, which keeps all aspects of citizenship in view from the start.This is shown in one of the early attempts to use new systematicconcepts for clarifying the confusion caused by the overlapping ofprivate and public law.According to classical private law, individual self-determination,in the sense of the negative freedom to do as one pleases, issufficiently guaranteed by a certain set of rights and institutions.These included not only personal rights and protection from torts,but above all freedom of contract (especially in the exchange ofgoods and services) and property rights (with the guarantees of useand disposal, including inheritance) allied with institutional guaranteesfor marriage and family. This situation was fundamentally