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

398----Chapter 9---- ------------ -- --- --- ----changed through the emergence of new areas oflaw (such as laborlaw, social legislation, and commercial law) as well as by thematerialization of contract law, tort law, and property law. In manycases, principles that hitherto could be allocated either to privatelaw or to public law merged and combined. The whole of private lawnow appeared to go beyond the goal of safeguarding individualself-determination, in order to serve the realization of socialjustice:"In this way, subsistence guarantees for all persons and protectionsfor the weak acquired, even in private law, a rank equal to thepursuitofindividual interests."18 Under this description, socioethicalconsiderations found their way into areas oflaw that until then hadtheir overall consistency in the normative goal of guaranteeingprivate autonomy. The additional goal of social justice now seemedto demand new ways of construing formally equal but materiallydifferent legal relationships, whereby the same legal categories andinstitutions could fulfill different social functions.To reorganize the disparate areas of law, Ludwig Raiser hasborrowed from sociological role theory. He distinguishes "spheres"or domains of action whose "public" or "political" content stands ininverse proportion to the level of legal protection granted to theindividual. According to this reading, the level of protectiondecreases the more the individual is caught up in social interdependenciesthrough her social roles or, to put this in a differenttheoretical language, the more strongly her range of options isdetermined by functional systems and large organizations whoseprocesses the individual cannot influence:Whereas the public law regulating the police, industry, labor, or the civilservice categorizes me according to my professional activity, I encounterthe norms of private law as producer or consumer, as head of a household,as homeowner, as member of a sports club and professionalassociation, or as commuter, having in each case particular rights andduties appropriate to these different situations. The institutions ofprivate law that I thereby use-such as contract, property and possession,membership, tortious liability-may be the same, nevertheless theychange their function and their legal valuation depending on the typicalsituation and the publicity content of the affected domain.19For this reason, Raiser demarcates a sphere of private life in thenarrow sense (the domestic sphere of home, family and marriage,