Plurality of Sources in European Private Law, or: How to Live with Legal Diversity?

Abstract

Private law is no longer primarily governed by rules produced by national legislatures and courts. The emergence of new types of rules, emanating from both international (including European) and private law makers, sits uneasily with traditional theory that is largely based on the monopoly of national states in making law. The main argument of this contribution is that this prompts the need for a fundamental rethinking of our idea of private law sources. After an overview of the multiplication of sources that we have witnessed over the last decades, two questions are discussed. The first is whether we are able to identify a ‘best’ level of regulation for a certain topic. It is proposed that this requires a functional view of the regulation of relationships between private parties: what are actually the functions that private law at the ‘natural’ national level serves and could these functions not be achieved in a better way at another level? The second question is what strategy should be adopted in dealing with a variety of sources out of which private law flows. The proposed strategy is not to eliminate pluralism or to try to create a coherent system out of conflicting sources, but to allow competition between diverging sets of norms with a relatively large role for parties to adopt the set of rules they like best. The necessary counterweight to this enhanced party choice is that its limits should be clearly defined: legislatures should be more explicit about what counts as mandatory law.

Keywords: pluralism, fragmentation, sources, private international law, multilevel law making, functional approach