Adolf Reinach (1883–1917) was a philosopher. Before his battlefield death at the age of thirty-three, his philosophical career was brief; the corpus he left slim.Footnote ¹ Today, he is best known for developing a theory of social acts thought to be an independent precursor to the speech act theories of John Austin and others later in the century.Footnote ² He is cited in certain branches of philosophy for his contributions on speech act theory and other contributions to metaphysics, including the mode of existence of states-of-affairs, their relationship to other features of our world, and the role of ‘phenomenology’ in epistemology.Footnote ³ In short, Reinach is taken today as a rather obscure metaphysician with a limited body of work.

But Reinach was also a legal philosopher. He wrote and thought a great deal about the law and legal philosophy,Footnote ⁴ and, uniquely in the philosophical circles in which he moved, he had trained as a lawyer.Footnote ⁵ Indeed, just as Austin would later draw on legal examples in his own discussion of speech acts,Footnote ⁶ Reinach’s social act theory is presented in, but takes up only a portion of, the most substantial publication of his life – the 1913 monograph The A Priori Foundations of the Civil Law.Footnote ⁷ The Foundations is a substantial work of legal philosophy that theorizes about basic constituents of private law – promise, obligation, claim, right, property, representation, and more – as social acts.Footnote ⁸

In the century since his death, Reinach’s substantive legal philosophy – that is, the rest of the Foundations – has fallen by the wayside.Footnote ⁹ Until recently, you could search in vain for citations to Reinach in the law reviews. While Reinach’s contributions to philosophy have undergone a renaissance in certain branches of ontology in the past forty years, his legal philosophy has not been the focus.Footnote ¹⁰ And even as private law theory has turned greater attention to Kant and other moral philosophers in recent decades,Footnote ¹¹ if you wanted to discuss Reinach at an English-speaking conference on jurisprudence, you would at best be looked at with befuddlement.

Granted, given what Reinach argued about the law, his dismissal from the Anglophone jurisprudential canon makes some sense. As the title of his monograph suggests (the A Priori Foundations), Reinach argued that the basic legal concepts that structure private law are metaphysically real constituents of the universe, accessible a priori by something called the ‘phenomenological method’ – ‘[w]e shall show that the structures which one has generally called specifically legal have a being of their own just as much as numbers, trees, or houses, that this being is independent of its being grasped by men, that it is in particular independent of all positive law.’Footnote ¹² ‘[T]he positive law’, Reinach boldly proclaims, ‘finds the legal concepts which enter into it; in absolutely no way does it produce them.’Footnote ¹³

In the century since Reinach wrote, there is perhaps no proposition of legal theory more widely taken for granted than that, whatever legal concepts are, they are not what Adolf Reinach thought.Footnote ¹⁴ Most famously and enduringly associated with the contributions of American Legal Realism, various forms of nominalism about legal concepts – that, say, the legal concepts of ‘contract’ and ‘ownership’ are more or less arbitrary exercises in policymaking, often sub silentio – have been gospel in the legal academy for over a hundred years.Footnote ¹⁵ As the slogan has it, ‘we are all legal realists now’.Footnote ¹⁶ In analytical jurisprudence, neither HLA Hart nor Ronald Dworkin thought legal concepts have a determinate metaphysical existence.Footnote ¹⁷ And whatever the Law and Economics and Critical Legal Studies movements disagree about, it isn’t this.Footnote ¹⁸

But perhaps now is the time to start engaging with Reinach – and his provocative metaphysical realism about legal concepts, sharp analysis of those concepts, and epistemic confidence in ‘phenomenological’ discernment – once again in legal philosophy. In the past few decades, theorists, particularly of the ‘New Private Law’ school, have grown increasingly skeptical of the hegemonic picture of private law concepts as exercises in boundless policy invention and reinvention.Footnote ¹⁹ Many of these scholars again take seriously private law’s internal point of view, sometimes including that perspective’s notorious solicitude for conceptual reasoning, while acknowledging a variety of interdisciplinary, external perspectives.Footnote ²⁰ And indeed, in the past few years, legal theorists have begun to engage with Reinach’s work in private law theory and adjacent areas of philosophy.Footnote ²¹

In this context, Reinach’s account of the a priori foundations of civil law offers valuable insights – perhaps uniquely valuable insights – to both proponents and detractors of a conceptualist, formalist turn in private law theory. For one thing, unlike many earlier proponents of legal formalism and natural law theory, Reinach knew he was defending a contrarian view against rising (and ultimately ubiquitous) positivist nominalism.Footnote ²² He framed his thesis against a view ‘on which there is general agreement’, that ‘all legal propositions are creations of the lawmaking factors’.Footnote ²³ And by taking seriously and engaging with nominalism on its own terms, his arguments might merit more credence than earlier theorists who assumed worldviews no longer widely accepted – say what you will about Reinach, he is no easily dismissed pre-Darwinian natural law theorist building jurisprudence on partisan theology. Indeed, he is no traditional natural law theorist at all, because although he took core legal concepts like promise to be metaphysically real, he also believed them normatively inert, and the positive law free to deviate from their a priori entailments in the name of morality or expedience.Footnote ²⁴

Moreover, Reinach’s enthusiastic embrace of metaphysical realism in private law can help both illuminate and challenge debates around legal concepts today. For those sympathetic to a role for conceptual reasoning or analysis in legal discourse, Reinach might offer a theory of legal concepts’ nature – supported by his broader ‘Realist Phenomenology’ theory of the universe, a general account of metaphysics and epistemology that has been revisited in philosophy in the past few decades.Footnote ²⁵ Or, as several contributions in this volume suggest in different ways, it might be that his analysis of legal concepts is illuminating even if his particular theory of their existence is not – he may have done valuable work making sense of the entailments of legal concepts that exist in some other, less difficult, way.Footnote ²⁶

At the same time, to skeptics of law’s internal point of view, or of the determinacy of legal concepts, Reinach might be saying the quiet part of any sort of legal conceptualism out loud. Nominalists about legal concepts have long suspected their opponents of (at least) closet Platonism – of being committed to law as a ‘brooding omnipresence in the sky’,Footnote ²⁷ consisting of a ‘heaven for legal concepts’,Footnote ²⁸ notwithstanding the interdisciplinary efforts of New Private Law theorists to avoid these sorts of commitments.Footnote ²⁹ From that perspective, at least Reinach doesn’t shy away from bold work in metaphysics, but rather embraces it wholeheartedly – perhaps raising the possibility that, at bottom, and in one of its best articulations, maybe conceptual analysis in legal reasoning does demand faith in something like the World of Legal Forms.Footnote ³⁰

In this volume, we bring together papers by American and European legal theorists and philosophers on Reinach’s work and its implications for private law. In so doing, we aspire to both resuscitate and interrogate Reinach’s legal theory, to situate Reinach’s theories alongside their alternatives and make sense of their relationship to debates in contemporary private law scholarship. Moreover, we hope that this volume will serve as a resource for private law scholars hoping to learn more about Reinach, philosophers and scholars of Reinach who plan to engage more with the legal aspects of his work, and students coming upon Reinach for the first time.

The contributions are arranged in three parts. In the first, Marietta Auer, James Toomey, Lorenz Kaehler, and Kimberly Baltzer-Jaray write about issues related to Reinach’s philosophical methodology. In Part II, Andrew Gold and Henry Smith, Sandy Steel, Paul Miller, and Olivier Massin discuss connections between Reinach’s legal philosophy and contemporary private law theories. And finally, Stephan Kirste, Emma Tieffenbach, Alessandro Salice and Olivier Massin, and Crescente Molina draw on Reinach’s approach in making novel arguments about particular legal concepts – from the concept of legal time to that of agreement.

This introduction is similarly arranged. After setting the scene with a brief biography of Adolf Reinach, we introduce each of the three parts, and summarize the chapters, in turn.

I.1 A Brief Life of Adolf Reinach

Adolf Bernhard Philipp Reinach was born in 1883 to a prominent and well-established Jewish family in Mainz, near Frankfurt, then of the German Empire.Footnote ³¹ His interest in philosophy began in his teenage years at Ostergymnasium at Mainz, where he was introduced to Plato, who would remain one of his most significant influences throughout his life.Footnote ³²

In 1901, Reinach started at the University of Munich, where he studied philosophy and psychology under Theodor Lipps, who was famous for interdisciplinary research in both fields.Footnote ³³ While Reinach’s heart clearly lay in philosophy and its intersection with empirical psychology, he also studied law and jurisprudence; indeed, he earned a PhD in philosophy in 1904 with a dissertation on the concept of causality in criminal law.Footnote ³⁴ During his years in Munich, Reinach fell in with a broad group of other students of Lipps, who would largely form his intellectual network for the rest of his life, many of whom were or would go on to be important philosophers in their own right – Johannes Daubert, Dietrich von Hildebrand, Max Scheler, Moritz Geiger, Theodor Conrad, Alexander Pfänder, and more.Footnote ³⁵

While Reinach was beginning his intellectual journey in Munich, Edmund Husserl, already established, was working in Göttingen, on, among other things, the foundations of logic, and the relationship between logic and psychology.Footnote ³⁶ In his 1901 work Logical Investigations, Husserl argued against the view (much in vogue, and embraced by philosopher-psychologists like Lipps) that logic was reducible to psychology, and propounded a new method, which he called ‘phenomenology’, as an alternative.Footnote ³⁷ Reinach’s circle in Munich began reading Husserl in the early years of the twentieth century, and its members were particularly attracted by the emphasis in Logical Investigations on the metaphysical realism of logic, as contrasted with the views of their mentor, Lipps.Footnote ³⁸ In 1905, Reinach and several of his friends from Munich began moving to Göttingen to work with Husserl directly – the so-called ‘Munich invasion of Göttingen’.Footnote ³⁹

Evidently, however, in a familiar tale, Reinach’s parents found disputes about the ontological status of logic rather frivolous (or at least unemployable), and insisted he return to his legal studies.Footnote ⁴⁰ He did so in 1906, taking courses in Munich and Tübingen, most influentially from the legal theorist Ernst Beling, whose account of criminal law saw it as composed of ‘delict-types’, through which certain sets of facts were held to constitute specified legal forms – not unlike Reinach’s own later views in civil law.Footnote ⁴¹ And though clearly he had little interest in practicing law, Reinach’s legal studies were not without characteristic intellectual enthusiasm – he boasted to his friends that he had memorized large portions of the Imperial German Code of Civil ProcedureFootnote ⁴² and commented favourably on the insight of many of his teachers.Footnote ⁴³ In 1907, he sat for and passed the state law exams, before promptly returning to philosophy.Footnote ⁴⁴

In 1909, once more firmly working on philosophical issues, Reinach habilitated at Göttingen with Husserl’s support, with a thesis on the nature of judgement, and began teaching as a Privatdozent.Footnote ⁴⁵ His teaching – something he had done informally among his philosophical peers for a long time – was rather legendary;Footnote ⁴⁶ ‘the Göttingen students … of this period refer to Reinach, not to Husserl, as their real teacher in phenomenology;’Footnote ⁴⁷ observing that he was ‘brilliant in directing philosophical seminars’.Footnote ⁴⁸

During these years, Reinach worked closely with Husserl as an assistant, helping to revise and prepare the second edition of Logical Investigations, which was to be published in 1913, and helping to edit Husserl’s new journal Yearbook for Philosophy and Phenomenology Research, which would become the preeminent publication of the phenomenological movement in the following decades.Footnote ⁴⁹ In 1912, Reinach married Anna Stettenheimer, among the first women to obtain a PhD in physics from the University of Tübingen.Footnote ⁵⁰

At the same time, Reinach was hard at work on his own contributions. In 1913, in the first edition of the Yearbook, he published his masterwork, The A Priori Foundations of the Civil Law.Footnote ⁵¹ Connecting his legal training with his philosophical thinking, the monograph argues that, rather than inventions of positive law, foundational legal concepts like promise and property are metaphysically real, and knowledge about them is accessible a priori.Footnote ⁵² Specifically, these legal forms are social acts, which Reinach took to be an ontological kind not sufficiently recognized in philosophy.Footnote ⁵³ Similar to John Austin’s later theory of speech acts, this ‘discovery’ of social acts in the Foundations is what Reinach is best known for today.Footnote ⁵⁴ But in the remainder of the work, Reinach seeks to illustrate the realism of legal concepts by reasoning to synthetic a priori judgements about them – that, say, a promise need not be accepted; a claim dissolves once waived.Footnote ⁵⁵

In the same edition of the Yearbook in which the Foundations appeared, Husserl also published his next great work, Ideas, advocating for phenomenology grounded not in metaphysical realism but transcendental idealism.Footnote ⁵⁶ The contiguity of this work with Husserl’s realism about logic in Logical Investigations has long been controversial, and Reinach and his fellow travelers in metaphysical realism took it as a substantial departure – ‘the Ideas … provided young phenomenologists with an opportunity to renew their commitment to a robust form of metaphysical realism, which was perceived as incompatible with Husserl’s transcendental idealism.’Footnote ⁵⁷ Indeed, while it may have been ‘something of an exaggeration’Footnote ⁵⁸ to claim that after Ideas ‘Reinach and, following him, the others broke away from the new developments’,Footnote ⁵⁹ an important intellectual rift had opened among self-identified ‘phenomenologists,’ and Reinach and Husserl were beginning to disagree about the basic foundations of philosophy.Footnote ⁶⁰

Any further intellectual divergence (or reconciliation) between Reinach and Husserl was, however, not to be. In August 1914, Europe descended into general war.Footnote ⁶¹ The notorious, now-mystifying war fever that swept Europe that fateful month did not pass Reinach by – he volunteered immediately and was in France by September, alongside his younger brother Heinrich, also a lawyer, who would later be imprisoned on Kristallnacht and escape to Brazil.Footnote ⁶² While at the front, Reinach continued thinking about philosophy – corresponding with his friends on philosophical topics and announcing lecture courses he would never give.Footnote ⁶³ In 1916, Reinach converted to Christianity and, while on leave, he and Anna were baptized into the Protestant Church.Footnote ⁶⁴ His final writings were sketches on the phenomenology of religion, written from the battlefield.Footnote ⁶⁵ Adolf Reinach died in the service of the German Empire on 16 November 1917, at the age of thirty-three.Footnote ⁶⁶

Back in Germany, Edmund Husserl eulogized Reinach in Kant Studies – ‘German philosophy has suffered a heavy loss as a result of Adolf Reinach’s early death.’Footnote ⁶⁷ Reinach had left his unpublished papers with Anna, with instructions to destroy them in the event of his death.Footnote ⁶⁸ Several previously unpublished fragments nevertheless appeared in the Collected Writings of Adolf Reinach, published in 1921 and edited and arranged by Edith Stein and other students, with an introduction by Hedwig Conrad-Martius;Footnote ⁶⁹ other writings were finally destroyed when Anna Reinach fled Germany in 1942, in the face of Nazi persecution.Footnote ⁷⁰

I.2 Reinach and His Method

To modern philosophical eyes, Reinach is a difficult philosopher to place. On the one hand, he writes like an analytical philosopher – he is engaged in an exercise that looks a lot like conceptual analysis, tosses variables around, and routinely invokes the philosophy of mathematics. On the other, he called his method ‘phenomenology’ and was a prime assistant to ur-Continental Edmund Husserl. Was Reinach an ‘analytical’ philosopher or a ‘Continental’ one? The answer, perhaps, is both, and neither.

Indeed, Reinach’s life, and his work, sits right at the point of departure of these schools. The Husserl of Logical Investigations was influenced by Gottlob Frege, often taken to be the founder of analytical philosophy, and was preoccupied with the foundations of mathematics and logic, just like Russell, Carnap, and the early Wittgenstein.Footnote ⁷¹ It was this Husserl that Reinach, and the other ‘Munich Realists’ were drawn to and worked with.Footnote ⁷² This began to change after Ideas, as Husserl took a turn into transcendental idealism, and Reinach and his friends doubled down in their realist commitments.Footnote ⁷³ Before the War, Reinach remained Husserl’s closest assistant.Footnote ⁷⁴ After, Husserl obviously needed a new one.Footnote ⁷⁵ He settled on a former seminary student named Martin Heidegger;Footnote ⁷⁶ and the rest, as they say, is history.

But before you jump to the conclusion that Reinach is just some sort of crypto-analytic, that isn’t quite right either. It was very important to him that his method was ‘phenomenological’, and he insisted on claims such as that ‘[i]n immersing ourselves in the essence of [legal] entities, we spiritually see what holds for them’.Footnote ⁷⁷ Indeed, it might be best to say that the moment of ‘Realist Phenomenology’ Reinach occupied with his friends from Munich was its own bounded moment in philosophy – then eclipsed after twenty years of turmoil by the linguistic turn in English and existentialism on the Continent. The survivors of the moment – Roman Ingarden, Max Scheler, Hedwig Conrad-Martius, Dietrich von Hildebrand, Edith Stein – carried on the legacy of Realist Phenomenology in more religious philosophy.Footnote ⁷⁸

The chapters in the first part of the book address questions raised by Reinach’s philosophical method, his relationship to other philosophical schools, and the implications of his philosophical position for his jurisprudence. In ‘Promising, Owning, Enacting: Adolf Reinach’s Phenomenology of Legal Speech Acts’, Marietta Auer draws out the nature of Reinach’s phenomenological theory of private law by examining it in light of both the German civil law tradition and mid-century language philosophy. As noted earlier, Reinach was trained in the law, and the Foundations reflects a deep knowledge of the German Civil Code. This knowledge of German law shapes some of Reinach’s analysis but, at other times, offers a foil for his views. Those views rest on a theory of social speech acts – legal relations arise when actors engage in various social speech acts. Reinach concentrates in particular on promising and owning. Auer shows how deeply linguistic Reinach’s approach is and draws out its etymological background. Promising involves speaking (versprechen), and owning involves hearing and obeying (gehören). Even enactment is a social speech act (bestimmen) with etymological linguistic overtones.

This confluence of tools and goals in Reinach’s phenomenology of private law allows him to avoid some of the pitfalls of established schools of thought, Auer argues. His approach is not wholly positivist, and nor is it moralist (natural law) or nominalist (as in Legal Realism and its relatives). Reinach can, from this perspective, be interpreted as eschewing metaphysics where it is not necessary. Promisors are obligated to perform because they have promised, rather than because of positive law, promisee reliance, good consequences from promise keeping, and the like. Reinach thus solves notorious problems – such as justifying the bindingness of promises and the nature of ownership as more than a bundle of rights – by stopping philosophical analysis when it reaches the ‘a priori’ bedrock in the law. In this way, Reinach does not overclaim about what ought to be from what is, and thereby avoids the common pitfalls of ‘ontologism’.

In ‘Darwin’s Reinach’, James Toomey argues that Reinach’s approach to basic legal concepts can be embraced on the basis of evolutionary psychology rather than Reinach’s own strong metaphysical views. Reinach thought that basic legal concepts existed outside the law, that positive law could deviate from them, and that both are distinct from morality. This combination of positions is very unusual and was a path not much trodden in the twentieth century. However, later developments in evolutionary psychology bear some resemblance to Reinach’s position – legal concepts are anchored in reality, because adaptive fitness is necessarily constrained by external reality of some kind. Evolution and an evolved modular mind produce concepts very much like those explored by Reinach. Toomey points out that there is some irony in this, in that Reinach wrote at a time when controversy raged over whether concepts and reasoning were psychological or more firmly grounded ontologically. With Edmund Husserl and Gottlob Frege, Reinach took the ontological side and was at great pains to distance himself from the ‘psychologism’ of his mentor Theodor Lipps. By contrast to the psychology of his day, modern evolutionary psychology is not as plastic and arbitrary and so is surprisingly compatible with Reinach’s a priori, without being a full-blown a priori in the metaphysical sense.

Although a strongly ontological and an evolutionary psychological take on concepts are in principle distinct, Toomey argues that for practical purposes they are very close, and closer than Reinach and his contemporaries thought. Reinach, Husserl, and Frege made arguments for ontological robustness of concepts and reasoning that were contested at the time. The domain most amenable to their approach was mathematics. Reinach’s subject matter, the law, presents difficulties because law is inherently social – no people, no law. Reinach took his concepts to be timeless and equally applicable to any beings capable of engaging in social acts, but experience only offers people as such agents, and in this domain, Toomey argues, evolutionary psychology points in the same directions as Reinach’s methodology. Thus, one can accept that Reinachian concepts exist as features of human psychology without taking them to exist as metaphysically distinct basic concepts as Reinach did.

Lorenz Kaehler, in ‘Is There a Legal A Priori? On Necessary, Essential, and Non-positive Propositions in Reinach’s Theory’, interrogates Reinach’s central thesis in the Foundations – that there indeed exist a priori legal propositions independent of all positive law. Kaehler maintains that, although Reinach has convincingly shown that there are non-positive propositions of law with truth value – that is, legal propositions that are true not solely by reference to positive law – he has not demonstrated the more ambitious claim that these propositions are in fact epistemically a priori. Indeed, as Kaehler points out, there are a variety of ways in which legal propositions could be non-positive but not a priori – they might be presupposed by positive law, perhaps grounded in minimal morality, or at least partially justifiable with reference to experience.

From Kaehler’s perspective, Reinach’s arguments for insisting that the non-positive propositions he is discussing, indeed all plausible arguments for insisting that non-positive propositions are a priori, are unavailing. Drawing on more recent work in epistemology and metaphysics, Kaehler suggests that there are many necessary, essential, and intuitive propositions that depend on experience – and to the extent those are the only arguments in favor of the a priori status of Reinach’s legal propositions (and they seem to be) they do not get us to that conclusion. And yet, according to Kaehler, the fact that Reinach has not proven the central thesis of the Foundations does not mean that his analysis is unimportant. Though Reinach thought he had discovered an a priori sphere of right, Kaehler grants he conducted important analysis of something like a non-positive sphere of right, a significant domain of legal propositions thus far inadequately theorized.

In ‘Adolf Reinach, Negation, and Law,’ Kimberly Baltzer-Jaray connects Reinach’s legal philosophy and training to broader aspects of his ontology. Among contemporary ontologists, Reinach is known for the controversial view that ‘negative states-of-affairs’ – the rose’s not being blue, for instance – have the same ontological status as positive ones – the rose’s being red. This position was received with skepticism by many of Reinach’s fellow travelers in phenomenological realism, including Johannes Daubert and Roman Ingarden, who insisted that the ontological status of positive states of affairs is always primary; negative ones are at best derivative, and, at worst, purely psychological or linguistic.

But Baltzer-Jaray argues that there might be something to Reinach’s position, and that it was Reinach’s legal studies – unique among his philosophical peers – that helped him see it. As Baltzer-Jaray points out, apparently negative states-of-affairs – the absence of due care, say – routinely play a role in constituting legal conclusions as much as positive ones do. Negative states of affairs, in other words, often appear legally on a par with positive states. This ubiquitous structure of legal reasoning, Baltzer-Jaray argues, helped Reinach consider the role of negation in ontology in a way that was unavailable to his contemporaries, and revealed to him an ontological significance in negative states of affairs that others did not appreciate. Moreover, Baltzer-Jaray suggests that Reinach’s views on negative states-of-affairs might have implications for a range of contemporary social and ethical problems, and that linking his legal philosophy to his ontology can help make sense of him as a unified philosophical thinker.

I.3 Reinach and Private Law Theory

If you’re looking for contemporary legal theorists, who, like Reinach, claim to be outlining the a priori foundations of private law, you’ll be looking a long time. But that hardly means that Reinach doesn’t bear resemblance – in sharing certain concerns, conclusions, and methods – to many important threads in contemporary private law theory. To be sure, Reinach’s careful parsing of the entailments of concepts like ‘promise’, ‘enactment’, and ‘obligation’ divorced (at least aspirationally) from any consideration of the positive law are about as far away from the nominalist view of legal concepts still fashionable in traditional Law and Economics and Critical Legal Studies. But the last two decades or so have seen a resurgence in private law theory outside of these schools.

This work has come from a variety of points of entry. Some of it draws on moral philosophy, and a turn towards something more like metaphysical and moral realism in analytical philosophy.Footnote ⁷⁹ Other scholars think that legal concepts, regardless of their moral or ontological status, serve necessary functions – economic, psychological, semantic – in packaging information across domains.Footnote ⁸⁰ And still others simply do doctrinal analysis, taking it seriously as a project.Footnote ⁸¹ Traveling under the heading of ‘New Private Law’, these disparate threads have argued that there is a place for the internal conceptual structure of traditional legal reasoning.Footnote ⁸²

Reinach’s legal philosophy offers important points of connection with this intellectual movement, as well as significant contrasts. And the chapters in Part II engage with these sorts of connections – laying bare and critiquing Reinach’s theories of legal philosophy or comparing and contrasting Reinach’s positions with those of other theorists.

Andrew Gold and Henry Smith, in ‘Legal Concepts as a Deep Structure of the Law: Reinach’s A Priori in Action’, argue that regardless of the ontological status of the legal concepts Reinach analyses, his methods and conclusions are clearly on to something, and on to something of value to both sides to various persistent dichotomies in private law theory. Taking Reinach’s discussion of property, transfer, and representation as case studies, they reveal how Reinach’s analysis captures general intuitions behind common forms in many positive legal systems, often more plausibly than alternative accounts. Gold and Smith analogize Reinach’s a priori domain of right to the role that ‘deep structure’ plays in generative grammar theory – a consistent, robust structure presupposed by, and which indeed makes possible, variation in surface structure. And just as with deep structure in linguistics, Reinach’s a priori might be consistent with a range of theories of its ontological grounding – perhaps it is onto something metaphysically real, but it could just be psychologically universal, or conventional in response to consistent functional needs, all three, or other things.

Seeing Reinach’s theory in this light, Gold and Smith argue, has several benefits, and helps cut through contemporary polarities in private law theory. Reinach’s account is ‘internal’ in the sense that it takes seriously the law’s conceptual vocabulary, yet ‘external’ insofar as it is agnostic to the positive law; it is ‘holist’ in refusing to theorize primitives away, but ‘reductionist’ in revealing how complex positive legal mechanisms can be built from a deeper, smaller array of primitives. Moreover, reckoning with the deep structure of law can have benefits in purely functional terms, taking stock of the kinds of legal propositions people will find intuitive, and those that require greater cognitive load to enshrine and enforce. Reinach, Gold and Smith take it, is thus doing – or at least compatible with – New Private Law.

In ‘Private Law beyond the Law’, Sandy Steel tackles one of the most puzzling aspects of Reinach’s legal theory – the relationship between his analysis of a priori legal concepts and the inevitable normativity of the positive law, in the demands it makes of us and the reasons to which it is answerable. Steel does so in two ways. First, he observes that, while many contemporary private law theorists do not say they are seeking something as mysterious as the ‘a priori foundations of the civil law’, it often looks as though that is what they are doing. Where most contemporary such theorists depart from Reinach, however, is in that they appear to be studying the a priori moral foundations of private law, as, say, contemporary neo-Kantians. In contrast, Reinach’s approach to descriptive analysis carries unique benefits in clarity, but unique risks of conflating that which a priori is with that which the positive law ought to do, a risk of which Reinach himself was acutely aware.

Second, Steel synthesizes Reinach’s scattered, and perhaps not altogether clear, remarks about normativity in the Foundations. At once, Reinach maintains that promises generate, a priori, obligations, but that these obligations are not moral obligations; that positive law has the capacity to create genuine oughts; and yet at the same time that positive law might be answerable to extrinsic moral considerations. Steel finds provocative points of comparison in contemporary private law theory and case law, while at the same time questioning whether Reinach in fact held a coherent, thorough theory about the relationship between his a priori, normativity, and the positive law. In short, Steel argues that Reinach’s unique phenomenology of legal concepts at once clarifies and elides the normativity of positive law.

Paul Miller, in ‘Reinach on Personality and Representation’, juxtaposes what he takes to be one of Reinach’s most insightful contributions – his analysis of representation – with an admirable failure – his incomplete analysis of legal personhood. Unlike many contemporary private law theorists and legal philosophers, Miller observes, Reinach was well aware that his theory demanded an account of legal personhood, and throughout the Foundations he gestures obliquely to the conditions and prerequisites of personhood – an admirable aspiration. At the same time, Miller finds Reinach’s discussion incomplete, alluding to rather than substantiating a thorough theory of personhood. And Reinach’s failure to connect his theory of legal concepts to a theory of persons who use them and for whom they are used, Miller holds, renders Reinach’s claims to have discovered universal truths accessible to all intelligence implausible.

Where Reinach’s discussion of personhood was incomplete, Miller describes his analysis of representation as something of a triumph – an account second only to Hobbes’ and distinguished by its own genuine insights. Some of these innovations include Reinach’s distinction between authentic and inauthentic representation, drawing on his view of social acts as having authentic and inauthentic forms, and his account of passive representation. At the same time, Miller argues that Reinach’s theory of representation is ultimately limited by his failure to connect it to a general account of legal personhood. As elsewhere, Reinach acknowledges that representation is intimately tied up with legal personality. But without a theory of legal personality, his theory of representation must necessarily be limited.

Olivier Massin, in ‘The Ontology of Liberties: Reconciling Reinach and Hohfeld’ situates Reinach alongside his more influential contemporary – Wesley Hohfeld. Working independently through their brief, contemporaneous lives in Germany and the United States, respectively, Massin points out many similarities in the legal ontologies of Reinach and Hohfeld – both sought to elucidate the obscure, essential conceptual substructure of legal reasoning, clarifying legal discourse at its atomistic base level. And in so doing, Reinach and Hohfeld settle on many of the same essential distinctions – between claim rights and liberty rights, between possession and ownership, between legal powers and legal rights, and more.

At the same time, Reinach and Hohfeld disagree significantly on the nature of legal liberties. Hohfeld claims such rights correspond to correlative ‘no rights’ held by others. Reinach rejects this – liberty rights, he claims, are absolute rights, which essentially lack correlatives of any kind. Massin argues that both theorists are on to something. Reinach is right, he suggests, insofar as some liberties are absolute and uncorrelative. But he is wrong that all are – and as Hohfeld argued, Massin contends that some liberties do indeed have no-right correlatives. Taking Reinach and Hohfeld together, in other words, helps illuminate a thorough ontology of liberty rights that accommodates both relative and absolute liberties.

I.4 Reinach and Legal Concepts

Reinach’s most famous philosophical position is his discovery of social acts. His most controversial is metaphysical realism about legal concepts. But neither of these positions occupies most of Reinach’s time and attention in the Foundations. Most of the Foundations is dedicated to careful analysis of specific legal concepts – promise, claim, obligation, property, lien, enactment, and more. To take Reinach seriously, then, is not merely to interrogate his phenomenological realism, nor to situate him among contemporary currents in legal theory. It is, at least in part, to do what he did – to theorize about the law and its concepts along the lines that he does, inspired by some aspect of his analysis, whether what he has to say about particular legally significant concepts, or guided by his commitment to concepts’ realism and primitive atomism.

The chapters in Part III do just that – tackling a particular legal concept either directly on Reinach’s terms, or in a method broadly inspired by his. Stephan Kirste, in ‘Adolf Reinach and Gerhart Husserl on the Foundations of Legal Phenomenology and the Temporality of Law’, offers a thorough examination of the legal concept of time in Reinach’s work as compared to that of Gerhart Husserl, son of Edmund and a later phenomenologist. In so doing, Kirste reveals important similarities and disagreements between Reinach’s Pre-War Realist Phenomenology, and Gerhart Husserl’s transcendental idealist perspective drawing on the later work of his father and of Heidegger. As Kirste points out, Reinach believed that legal concepts like promises, in their general form, are timeless and a priori, but that particular instances of promises, and the claims and obligations they give rise to, are inherently temporal and in a peculiar way under-appreciated in philosophy – they are entities that come into being with the promise, and disappear from the world with its fulfilment or waiver.

According to Kirste, this suggests that Reinach understood that the law to some extent relies on its own internal temporal structure, in principle distinct from the general flow of chronological time – a promise creates its own ‘extended present’ within which it could be accepted. Working within the idealist phenomenology of later decades, untethered from a timeless a priori realm, Gerhart Husserl took a similar notion further, suggesting that law, a work of will of the population, expresses its own abstract temporal consciousness in the decisions of particular judges. But Kirste argues that neither Reinach nor Gerhart Husserl fully appreciated the extent to which law indeed regulates its own past, present, and future, and thus creates its own temporality, each offering a less-than-complete theory of the relationship between law and time.

In ‘How to Make Gifts with Words’, Emma Tieffenbach employs Reinach’s theory of social speech acts and his analysis of promise to evaluate theories of gifts. Analytic philosophers disagree over basic questions about the nature of gifts. Does the recipient of a gift need to know about a gift for it to occur? Does the recipient have to accept the gift? Does a physical transfer have to occur? Some other kind of transfer? Reinach never treated gift in any detail, but his general theory and its application to promises suggests that a declaration that the gifter is (thereby) transferring ownership is required. No act on the part of the recipient is needed, although a recipient can by an affirmative act prevent the gift from being completed. A gift need not be taken up but can be refused. Key to this analysis is the idea that the transfer is of ownership, not of the thing itself.

This ‘Ownership View of Gift’ that Tieffenbach endorses carries a number of advantages. Although in common parlance gifts are treated as transfers of things, a close look at gifts in Reinachian fashion reveals that the structure of gifts is based on transfer of ownership. Gifts are not bilateral even though they can be blocked by the recipient. Moreover, linguistic usage and borderline scenarios reveal that uptake is not required and that it is ownership that is transferred. Moreover, Tieffenbach suggests that her view helps explain the surprisingly wide variety of speech acts that can result in such a transfer of ownership. These include the familiar speech acts involving transfer of ownership directly but also embrace the granting of a right to revoke a promise to pay for a thing and the waiver of a right to an amount of money owed for a thing. That such specific insights into gifts flow from a close look into the metaphysics of the social speech acts involved in gifting is quite Reinachian in spirit.

In ‘So Close and Yet So Far: Reinach and Gilbert on Promises’, Alessandro Salice and Olivier Massin compare Reinach’s theory of promises to the more recent theory of Margaret Gilbert, noting striking similarities, but ultimately endorsing Reinach’s theory as stronger where they come apart. Like Reinach, and unlike most of today’s theorists, Gilbert maintains that promises, even immoral ones, inevitably give rise to obligations, that these obligations are non-moral and relational, and that theories of promissory obligation that seek to ground the binding character of promise in expectation, trust, or other functional concerns are off on the wrong foot. Unlike Reinach, however, who insists that promise is an a priori primitive that by its nature generates obligations, disclaiming the need for further grounding, Gilbert situates promises as a form of joint commitment – the promisor and promisee jointly committing to endorse as a body the promisor’s plan of action.

For a variety of reasons, Salice and Massin argue that Gilbert’s account is not a plausible theory of our ordinary concept of promise. It suggests, for example, that a promise is something a promisor and promisee do together, and for which a promisee bears some moral responsibility, while we generally think of promises as an act of a promisor themselves, for which they bear sole responsibility. The failure of Gilbert’s account in these ways, notwithstanding its admirable solicitude for taking ordinary social concepts seriously, Salice and Massin maintain, suggests that Reinach’s view might be on to something – perhaps the concept of promise is simply a primitive that generates obligations by virtue of its very nature, such that accounts that seek further grounding for that fact are doomed to failure.

Finally, Crescente Molina, in ‘The Conceptual Foundations of Contract Formation’, offers a novel account of contract formation in a thoroughly Reinachian spirit. Molina starts from the premise – the ‘Necessity of Agreement Axiom’ – that contracts presuppose the mutual assent of at least two people to some sort of agreement. Taking this widely accepted intuition about the essential nature of contract, Molina argues, expands our account of the possibilities of contract formation. While the traditionally taught ritual of ‘offer’ and ‘acceptance’ is surely one way parties can reach the required agreement, this traditional framing obscures another – ‘contractual subscription’, or agreement to a pre-existing set of legal entailments in legislation, custom, or elsewhere.

Assuming the Necessity of Agreement Axiom, Molina considers the kinds of social acts that can or must constitute contracts. He suggests, contrary to the longstanding assumption of the common law world, that the social act of promise is the wrong place to start. Bare promises can unilaterally generate obligations. If a promise is to create a bilateral agreement, as demanded by the Necessity of Agreement Axiom, it must be in a particular form – a promissory offer that by its terms only becomes binding on acceptance. It is not the social act of promising simpliciter, then, but only a particular species, that could give rise to contract. But Molina, indeed, thinks the Necessity of Agreement Axiom pushes us even further – to recognizing that contracts could be formed without any social act at all. In some cases of contractual subscription, Molina holds, a contract comes into being with only internal assent; assent that fulfills the Necessity of Agreement Axiom, but is not a social act, in Reinachian terms, at all.