This essay is about the ways the legislator in Europe, in particular the EU and the German legislator, and the community of lawyers at large over the last 100 years have approached the systemic legal problems raised by fundamental societal changes, such as industrialization of production, the consumer movement, and, recently, the digitization of the economy and of society. It posits that the main trend always was somehow to avoid addressing directly the changed realities and, instead, preferred maintaining tel quel the existing system of private law as inherited from the codifications of civil law. The author illustrates his critical analysis by pointing to the profound transformation to which digitization exposes classic concepts of private law. He concludes by a strong plea for a holistic and broadly interdisciplinary approach for dealing with the systemic challenges that digitization poses to a socially satisfactory functioning of the general legal order.
Hans-W. Micklitz searches for the politics of behavioural economics of law. This implies a need to place behavioural law and economics into context – historically, politically, philosophically, theoretically and methodologically. The overall argument is that it is economic efficiency that stands predominantly behind behavioural law and economics, insinuates a value change away from the social and from the role of law, affects the autonomy of the individual and disconnects her from the society. Behavioural law and economics is more than a research tool; it is a normative theory if not a social theory. Therefore, the politics of behavioural law and economics can and should be read as a first attempt to formulate a critical theory on the behavioural analysis of law that reduces law to economic efficiency and cognitive psychology, forgetting about the sociology of law. Only an opening towards the society and the sociology of law – this is the conclusion – can demonstrate the added value of behavioural law and economics.