Abstract

http://ssrn.com/abstract=2264701
 


 



The One and the Many: Translating Insights from Constitutional Pluralism to European Contract Law Theory


Chantal Mak


University of Amsterdam - Centre for the Study of European Contract Law (CSECL); University of Amsterdam - Faculty of Law

May 8, 2013

European Review of Private Law, Forthcoming
Centre for the Study of European Contract Law Working Paper Series No. 2013-06
Amsterdam Law School Research Paper No. 2013-28

Abstract:     
While freedom of contract has generally been recognised as a leading principle of European contract law, national contract laws as well as EU measures show remarkable differences with respect to the limits they impose on contractual freedom in light of the public interest or common good. Whereas some private legal scholars aspire to relate all rules of private law to a single value (monist theories), others consider it impossible to find such a common denominator (radical pluralist theories). In this paper, it is submitted that a moderate pluralist theory offers the most convincing narrative to explain current developments in this field, since it defines a meta-level on which diverging ideas of contract law can be reconciled by the definition of coordinating principles. These meta-principles indicate which conception of the common good prevails in a specific case and on which level (European or national) final decision-making authority is allocated in that case. Through an analysis of examples from case law (the story of the CJEU’s Viking and Laval judgments, and the Court’s recent decision in the Aziz case) it is argued that a moderate pluralist theory also provides the most convincing normative model for the further development of European contract law.

Number of Pages in PDF File: 20

Keywords: European contract law, common good, monism, pluralism

JEL Classification: K12

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Date posted: May 15, 2013  

Suggested Citation

Mak, Chantal, The One and the Many: Translating Insights from Constitutional Pluralism to European Contract Law Theory (May 8, 2013). European Review of Private Law, Forthcoming; Centre for the Study of European Contract Law Working Paper Series No. 2013-06; Amsterdam Law School Research Paper No. 2013-28. Available at SSRN: http://ssrn.com/abstract=2264701 or http://dx.doi.org/10.2139/ssrn.2264701

Contact Information

Chantal Mak (Contact Author)
University of Amsterdam - Centre for the Study of European Contract Law (CSECL) ( email )
P.O. Box 1030
Amsterdam, 1000 BA
Netherlands
University of Amsterdam - Faculty of Law ( email )
Amsterdam, 1018 WB
Netherlands
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