This book is a large-scale historical reconstruction of liberal legalism, from its inception in the mid-nineteenth century, the moment in which the jurists forged the alliance between political liberalism and legal expertise embodied in classical private law doctrine, to the contemporary anxiety about the possibility of both a liberal solution to the problem of political justification and of law as a respectable form of expert knowledge. Each stage in the history is a moment of synthesis between a substantive and a methodological idea. The former is the liberal political theory of the period, purporting to provide a solution to the problem of political justification. The latter is a conception of legal method or science, supposedly vindicating the access of the expert to the political choices embodied in the law. Thus, each moment in the history of liberal legalism integrates a political theory with a jurisprudential conception. Although it reaches the unsettling conclusion that liberal legalism has largely failed by its own standards, the book urges us to avoid quietism, scepticism or cynicism, in the hope that a deeper understanding of the fragility of our values and institutions inspires a more thoughtful, broadminded and nurtured citizenship.

Table Of Contents

1. The Idea of Political Liberalism 

I. The Liberal Hypothesis 

II. Majoritarian Government 

III. Democratic Legitimacy 

IV. The Trouble with Majoritarianism 

V. Reasonable Pluralism 

VI. Freestanding Principles 

VII. Politics and Justice 

VIII. Political Liberalism 

IX. Pluralism within Liberalism 

2. Kant and the Will Theory 

I. Why Kant? 

II. Kant's Moral System 

III. Moral Value in the Groundwork 

IV. The Nature of Recht 

V. The Rightful Condition 

VI. Private Right 

VII. The Will Theory 

VIII. Norm and Exception 

3. The Rise of Classical Private Law 

I. From Theory to Ideology 

II. Reception of the Will Theory 

III. Rise and Decline of Iurisprudentia 

IV. Modern Legal Science 

V. The Savignian System (i): Substance 

VI. The Savignian System (ii): Method 

VII. The Triumph of Formalism 

VIII. Classical Private Law 

4. The Socialisation of Private Law 

I. The Social Question 

II. The Social Jurists 

III. The Emergence of Social Law 

IV. The Social in Private Law 

V. The Critique of Formalism 

VI. Teleological Jurisprudence 

VII. Culpa in Contrahendo 

VIII. Abuse of Rights 

5. The Politicisation of Private Law 

I. On 'Legal Realism'

II. The Collapse of Private/Public 

III. Confl icting Considerations 

IV. Rules and Principles

V. The Indeterminacy of Doctrine 

VI. The Indeterminacy of Rules 

VII. The Indeterminacy of Grounds 

VIII. Ideology in Private Law