This Introduction situates Reinach and the Foundations of Private Law, and Adolf Reinach, in contemporary currents in private law theory and philosophy.

Private law theory is pulled in opposite directions: internal and external perspectives on law; holistic and reductionist methodologies; conceptualist and nominalist views; and deontological and consequentialist approaches. Relatedly, theories tend to focus on the micro or the macro scales – interpersonal relations or societal effects – but face difficulties in connecting them. In this paper, we examine these problems in private law theory through the lens of the legal phenomenology of Adolf Reinach. According to Reinach, the law presupposes a realm of real, timeless entitles and their workings that are synthetic a priori: they are neither conventional nor contingent. Nor are they inherently moral or customary. We argue that regardless of the ontological status of what Reinach identifies as a priori, it points toward something more robust than most current theories would countenance. We illustrate the usefulness of this perspective through Reinach’s analysis of property, transfer, and representation. Reinach captures features and generalizations that have eluded analysis, as, for example, when he treats the principle of nemo dat quod non habet (‘one cannot transfer what one does not own’) as underlying all transfer even if displaced by positive rules such as good faith purchase. His views also point toward the importance of accessibility for legal concepts, including cases of tacit knowledge. Whatever its exact source, this “deep structure” of the law has the potential to partially reconcile some of the fissures in private law theory and to connect the micro and the macro through a better understanding of system in law.

This Introduction situates Reinach and the Foundations of Private Law, and Adolf Reinach, in contemporary currents in private law theory and philosophy.

Speech act theorists take a gift to be among the range of things we can do with words. They also disagree regarding the extent of the participation of the giftee in the act. Can a gift be made unbeknownst to its recipient? If not, is the latter required to accept the gift, in addition to hearing and understanding the utterance through which it is made? Because they give their insights about gifts in passing, speech act theorists also leave important aspects of the act in the dark. They hint at the power of gifts to modify the deontic status of its two parties, but leave to one’s guess the details of the related changes. The aim of the chapter is to reflect further on these quandaries and neglected sides of gifts in light of Reinach’s theory of social acts. The main result of the present Reinachian inquiry is that the puzzles raised by the illocutionary act of making gifts dissolve once attention is redirected from the thing that is gifted to the ownership over that thing.

The chapter compares the two remarkably similar and yet importantly different theories of promises, developed by Adolf Reinach and Margaret Gilbert, respectively. Margaret Gilbert claims that promises can be explained in terms of joint commitments borne by the promisor and the promisee to the decision that the promisor will φ. On this view, the promisor’s obligation and the promisee’s claim are grounded in the commitment they have jointly entered. By contrast, Adolf Reinach submits that promises do not have substantial explanation and that they generate promissory obligation and claim in virtue of their nature. By using insights from Reinach’s theory, this paper argues that Gilbert’s account of promises is to be rejected and suggests abandoning the idea that progress in our understanding of promises requires submitting them to substantial explanations.

This chapter critically examines the treatment of concepts of legal personality and representation provided by the great (if lamentably now mostly forgotten) German realist phenomenologist Adolf Reinach. In The A Priori Foundations of the Civil Law (1913), Reinach offers what is meant to be a phenomenological elucidation of the a priori nature (essential formal characteristics) of a wide variety of foundational legal concepts, the latter understood as denoting distinctive modalities of speech act. The primary interest of the chapter lies in the analysis that Reinach provides of concepts of personality and representation. However, one cannot understand what is distinctive in – and distinctively compelling or puzzling about – Reinach’s analysis of these concepts without appreciating what is distinctive about his general methodology of conceptual analysis (i.e., his phenomenological, speech act theoretical understanding of social behavior denoted by legal concepts). Thus, in addition to examining Reinach’s views on persons, legal personhood, and legal representation, the chapter provides a critical introduction to Reinachian conceptual analysis and explains its enduring interest for contemporary private law theory.