Das Politische im Privatrecht

Drawing on considerations rooted in the history of legal thought and the framework
defined by the Basic Law, this article argues that the attempt to separate the political
from private law does not lead to a clear-cut boundary or categorical separation. There
does appear to be a critical distinction between influences on private law from within,
i. e. those that effectuate the functional prerequisites for private autonomy, and other
influences that are external to the private law system. The article proposes that considerations
of efficacy
and efficiency should guide the legislator when exercising its discretion
whether to pursue political objectives by means of public or private law. Calibrating
the dosage of the political in private law requires being mindful of the importance of
preserving the value of society's self-regulatory power.