What is a 'Legal Relationship'? A Comparative Analysis
Notes & Changes
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What do we mean when we talk about a legal relationship? It seems to be a term of everyday language without specific content. It is simply used to indicate that a relationship is in the sphere of law. Thus, in the common law doctrine of the intention to create a legal relation, what is at stake is a formation of a contract; the same is true in the so-called relational contract. So paradoxically, there is no legal concept of legal relationship in common law or in civil law (rarely present in legal dictionaries). However, in the new Chinese Civil Code, it is a concept that structures all the chapters, even in family matters. The concept of legal relationship (Minshi Guanxi) comes from Germany (Savigny-Windscheid) but differs from it because it is not only based on rights, but on the trilogy of rights-obligations-liabilities (according to Z. Wei). Then quite recently, there have been legal philosophers promoting the concept of legal relations with a feminist approach (Nedelsky, 2011, Law’s Relations, Oxford University Press) or a Neo-kantian approach (Somek, 2017, Legal Relations, Cambridge University Press). Moreover, the concept of legal relation is present in many other recent codifications (Quebec, Romania, Russia, etc.). As a result, it is a concept that has become as universal as contract or right. Would it be possible to find a common, albeit minimal, content of the concept of legal relation in comparative law? If such would it be possible to address new issues such as the possibility of a legal relationship with natural entities?
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