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Abstract
In terms of the theory of the three hierarchies of distribution in economics, private law can be seen as embodying a 2.5th distribution. Primary distribution confers equal objective rights on all private agents, who acquire subjective rights through de facto and de jure acts. The legal environment should be conducive to unleashing the energy and creativity of agents, supporting entrepreneurs, safeguarding competitive neutrality and promoting the mobility of factors of production in order to consolidate the material foundation of common prosperity. Redistribution changes the rules of primary distribution and is an inherent and rightful function of private law. By equalizing the strengths and weaknesses of the interactions of private agents, redistribution is better able to promote self-determination and defend human dignity than public law. Moreover, it enables private law to achieve the national goals of enhancing social welfare and reducing confrontation in the operation of power. Private law lies between redistribution and tertiary distribution, occupying the 2.5th distribution. Its most typical expression is “interference liability,” i.e., justified harm inflicted in cases of necessity (Aufopferungshaftung). This includes the expansion of the social liability of profitmaking legal persons, the expansion of tort liability, and the limitation of the return of benefits. Private law enables distributive justice to serve as a common basis for the various hierarchies of distribution, incorporating the different values of private law and weighting them differently depending on the circumstances. Distributive justice can also help to transform all private law rules into laws of nature, thus highlighting the neutrality of private law.
Notes
1 See Su Yongqin, “State Coercion in the Autonomy of Private Law: Types of Civil Norms and Direction of Legislative Interpretation from the Perspective of Functional Law.”
2 Franz Wieacker, Industriegesellschaft und Privatrechtsordnung, S. 2.
3 Duncan Kennedy, “The Role of Law in Economic Thought: Essays on the Fetishism of Commodities,” pp. 939-1001.
4 See Li Yining, “Several Questions on Economic Ethics.”
5 Xi Jinping, Hold High the Great Banner of Socialism with Chinese Characteristics and Strive in Unity to Build a Modern Socialist Country in All Respects—Report to the 20th National Congress of the Communist Party of China, p. 47.
6 See John Rawls, A Theory of Justice, p. 56.
7 See Ronald Dworkin, Taking Rights Seriously, p. 357.
8 See William Thompson, An Inquiry into the Principles of the Distribution of Wealth Most Conducive to Human Happiness, p. 183.
9 See Xie Hongfei, “The Life World, Value System, and Legislative Representation of a Chinese Civil Code.”
10 Richard A. Posner, Economic Analysis of Law, 4th ed., pp. 139-140.
11 Jana B. Singer, “The Privatization of Family Law,” pp. 1443-1567.
12 See Isaiah Berlin, Liberty: Incorporating Four Essays on Liberty, p. 186.
13 James Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States, pp. 6-11.
14 See Joseph Schumpeter, The Theory of Economic Development: Inquiry into Profits, Capital, Credit, Interest, and the Business Cycle, pp. 6, 70-75.
15 Gordon Smith and Darian M. Ibrahim, “Law and Entrepreneurial Opportunities,” pp. 1533-1571.
16 See Zeng Si, “The Independence of Corporate Wealth in the Light of the Theory of Asset Partitioning––Economic Functions and Legal Restrictions.”
17 Charles A. Reich, “The New Property,” pp. 733-787.
18 See Zhang Shouwen, “Adjustment of the Distribution Structure in Fiscal and Tax Law.”
19 See Friedrich Hayek, The Constitution of Liberty, p. 217.
20 Robert D. Tollison, “The Economic Theory of Rent Seeking,” pp. 73-82.
21 Richard A. Posner, Economic Analysis of Law, 7th ed.
22 See Ernest J. Weinrib, The Idea of Private Law, p. 38.
23 Hugh Collins, “Private Law, Fundamental Rights, and the Rule of Law,” pp. 1-25.
24 See Bernard Williams, Moral Luck, pp. 29-30.
25 Daphna Lewinsohn-Zamir, “In Defense of Redistribution through Private Law,” pp. 326-397.
26 Margaret Jane Radin, “Property and Personhood,” pp. 957-1015.
27 See Zhao Yu, “The Value Shift in the Marital Property System from the Judicial Perspective.”
28 Ralph C. Brashier, “Disinheritance and the Modern Family,” pp. 83-183.
29 See Xie Hongfei, “Three Perspectives on the Distribution of Property in the Civil Code: The Tragedy of the Commons, the Tragedy of the Anti-Commons, and Statutory Obligations.”
30 Daniel Benoliel, “Copyright Distributive Injustice,” pp. 45-81.
31 Wang Ming et al., “Tertiary Distribution: The Ascendance of Wealth and Its Distributive Mechanism.”
32 Vgl. Horst Konzen, Aufopferung im Zivilrecht, SS. 107-177.
33 Vgl. Staudinger/Althammer.
34 See Zhang Yongjian, “Restrictions on and Compensation for Property Rights: A New Theoretical Analytical Framework.”
35 Victor E. Schwartz et al., “Deep Pocket Jurisprudence: Where Tort Law Should Draw the Line,” pp. 359-404.
36 Giuseppe Dari-Mattiacci, “Negative Liability,” pp. 21-60.
37 Aziz Z. Huq, “The Public Trust in Data,” pp. 333-390.
38 See Zhang Guoqing, “Distributive Justice and Social Desert.”
39 See Aristotle, Nicomachean Ethics, p. 134.
40 See Ernest J. Weinrib, The Idea of Private Law, p. 75.
41 Peter Benson, “The Basis of Corrective Justice and Its Relation to Distributive Justice,” pp. 501-624.
42 See Peter Cane, “Distributive Justice and Tort Law,” p. 401.
43 Justin Desautels-Stein, “The Market as a Legal Concept,” pp. 387-492.
44 Leon Green, “Tort Law: Public Law in Disguise,” pp. 1-13.