European Private Law and Democracy: A Misunderstood Relationship
ESSAYS IN THE LAW AND ECONOMICS OF REGULATION IN HONOUR OF ANTHONY OGUS, Michael Faure & Frank Stephen, eds., pp. 49-59, Antwerp-Oxford 2008
12 Pages Posted: 2 Dec 2008
Date Written: 2008
An important strand of scholarship claims that creating a new European private law (such as the drafting of a Common Frame of Reference for European Private Law) should not primarily be the work of legal scholars, but of politicians and parliaments. Another view would purportedly lead to a lack of democratic legitimacy. This raises the more general question what should be the exact relationship between private law and (national) democracy. This contribution - written in the Festschrift for Anthony Ogus - argues that the relationship between European private law and democracy is often misunderstood. Legitimacy of private law cannot only be established through the national democratic institutions, but also in other ways. The Common Frame of Reference for European Private Law is an important example of this: as a non-binding instrument, it need not fulfill the same requirements as binding law. But also private law in the more traditional sense does not always have to be legitimised at the state level: the democratic functions of law can sometimes be provided by others than the State. The exact conditions under which this is the case still need to be explored.
Keywords: Democracy, Private Law, Legitimacy
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