Transformation of private law in a risk society

Abstract

In this risk society, one decision could have cumulative effects. i.e. a single decision to solve a certain problem leads to and produces another (unintended) problem. This paper illustrates this issue on three topics within the sphere of private law. The first topic is the digital standard form of contract used in international swap transactions. It was formulated by ISDA (the International Swaps and Derivatives Association) and has been broadly accepted in practice. Yet further inquiries show that some of its features, such as an automatic security executing clause, are normatively dubious. The institution of guardianship for adults is the second topic. It was newly introduced as a part of the Civil Code in 2000. Although it purports to enhance someone, lacking in legal capacity, his/her ability to realize his/her wilL the devices required for such empowerment’ would sometimes encourage others to intervene (in spite of the principal’s intent). The third refers to the tort of personhood Courts have issued injunctions to uphold claims of the right to peaceful daily life: in one case to prevent a group of gangsters from using a neighborhood building as their office and in another case to stop supply of water which a scientific analysis found as not contaminated enough to be unfit for consumption nevertheless ordinary people felt that it was not fit for drinking and other daily usage. In contrast to the first and the second cases in which one’s own decision or decisions by others on his/her behalf sometimes invite institutional intervention and control, resulting in the deprivation of his/her freedom to choose, in the third category, the use of injunctive relief based on the right of personhood indicates a different alternative where these injunctions eliminated possibilities for a string of new decisions.