What Do Nationalists Maximise? A Public Choice Perspective on the (Non-) Europeanization of Private Law

European Review of Contract Law Vol. 8, pp. 296-310 (2012)

Maastricht Faculty of Law Working Paper No. 2012/9

16 Pages Posted: 14 Apr 2012 Last revised: 29 Oct 2012

See all articles by Jan M. Smits

Jan M. Smits

Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI)

Date Written: 2012

Abstract

This contribution explores the relationship between (private) law and nationalism from a public choice perspective. Its main point is that the nationalist ideology in law is largely guided by the self-interest of citizens, legislatures, courts and academics. ‘Nationalists’ (those who favour the congruence of state and nation) maximise their chances in life by capitalising on homogeneity: by acting in accordance with the unified norms of the nation-state, they are able to put themselves in a better position. This framework is used to explain the importance of the nationalist view of law in the 19th century. In addition, it allows an analysis of both the question of how to organise private law today and the question of how to explain present resistance against Europeanization. At the normative level, the claim is made that citizens should be allowed to search for community elsewhere, e.g. by opting into European sets of norms (such as the proposed CESL). A possible explanation for resistance against Europeanization is found in the close relationship between engaging in things European and the economic or psychological advantages obtained from this. This is confirmed by a limited survey of the extent to which national academics are active in the debate on European private law, which can be explained by the different incentives universities provide academics with in obtaining tenure and prestige.

Keywords: Nationalism, European Union, Volksgeist, Resistance, Europeanization, Public choice, Codification, Legal culture

JEL Classification: K10

Suggested Citation

Smits, Jan M., What Do Nationalists Maximise? A Public Choice Perspective on the (Non-) Europeanization of Private Law (2012). European Review of Contract Law Vol. 8, pp. 296-310 (2012); Maastricht Faculty of Law Working Paper No. 2012/9. Available at SSRN: https://ssrn.com/abstract=2039338 or http://dx.doi.org/10.2139/ssrn.2039338

Jan M. Smits (Contact Author)

Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) ( email )

P.O. Box 616
Maastricht, NL-6200 MD
Netherlands

HOME PAGE: http://www.jansmits.eu

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