A Radical View of Legal Pluralism
Jan M. Smits
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI)
January 12, 2012
PLURALISM AND EUROPEAN LAW, Leone Niglia, ed., Oxford, 2012
Maastricht European Private Law Institute Working Paper No. 2012/1
Law is increasingly pluralist, meaning that different claims to legal authority exist at the same time on the same territory. This pluralism raises important questions in the field of (European) private law. The main question discussed in this contribution is a normative one: to what extent can legal pluralism be accepted, or should it even be encouraged? The answer provided entails a radical view of legal pluralism in European private law. This view is based on the idea that people are never necessarily governed by the law of one State or by the norms of one societal group, but are instead allowed to opt out of their ‘own’ set of norms. This puts legal pluralism in a different perspective. While an argument often used against pluralism is that it may endanger the interests of a party being trapped in its own community, the view laid down in this paper avoids this problem: it allows a party to opt out of one community and opt in to another one. The limits of this enhanced principle of party autonomy are found in public policy as understood in the field of private international law.
Number of Pages in PDF File: 12
Keywords: Pluralism, sources of law, private law, justice, party autonomy, multiculturalismworking papers series
Date posted: January 13, 2012
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