Hedgehogs in Luxembourg? A Dworkinian Reading of the CJEU’s Case Law on Principles of Private Law and Some Doubts of the Fox

European Review of Private Law, Forthcoming

Amsterdam Law School Research Paper No. 2011-24

Centre for the Study of European Contract Law Working Paper No. 2011-10

Post-National Rulemaking Working Paper No. 2011-02

21 Pages Posted: 1 Sep 2011 Last revised: 13 Feb 2014

See all articles by Chantal Mak

Chantal Mak

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

Date Written: September 1, 2011

Abstract

To what extent can the case law of the Court of Justice of the European Union (CJEU) in the field of European private law be understood and explained on the basis of a theoretical model of adjudication that defends the unity and objectivity of value? In light of Ronald Dworkin’s theory of adjudication, which defends value monism, it is submitted that some representative judgments of the CJEU that refer to ‘principles of civil law’ could be read as supporting such a holistic (hedgehog’s) perspective. Making a comparison with other judgments engaging ‘general principles of EU law’ and fundamental rights, however, it appears that this view is not unequivocally reflected in the Court’s reasoning. Rather, today’s European private law seems subject to value pluralism. On the basis of an assessment of several pluralist (fox’s) objections to a single-value theory of adjudication, it is suggested that future case law of the CJEU on matters of private law does not necessarily have to resolve the tension between the two views. It would, nevertheless, be desirable to develop a clear(er) methodological framework for the handling of arguments of principle in European private law adjudication. For this purpose, inspiration may be sought in the CJEU’s case law involving fundamental rights.

Keywords: European private law, principles of law, legal theory, Dworkin

JEL Classification: K12

Suggested Citation

Mak, Chantal, Hedgehogs in Luxembourg? A Dworkinian Reading of the CJEU’s Case Law on Principles of Private Law and Some Doubts of the Fox (September 1, 2011). European Review of Private Law, Forthcoming; Amsterdam Law School Research Paper No. 2011-24; Centre for the Study of European Contract Law Working Paper No. 2011-10; Post-National Rulemaking Working Paper No. 2011-02. Available at SSRN: https://ssrn.com/abstract=1920649

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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