How Many Systems of Private Law are There in Europe? On Plural Legal Sources, Multiple Identities and the Unity of Law
Martijn W. Hesselink
University of Amsterdam - Centre for the Study of European Contract Law (CSECL)
April 27, 2012
L. Niglia (ed.), PLURALISM AND EUROPEAN PRIVATE LAW, (Oxford: Hart Publishing, 2013), 199-247.
Centre for the Study of European Contract Law Working Paper Series No. 2012-03
Amsterdam Law School Research Paper No. 2012-59
Postnational Rulemaking Working Paper No. 2012-04
The central question in this paper is how many private law systems there are in Europe. That question is located at the crossroads of a variety of pluralities. There is a plurality of epistemological claims including the claim of epistemological (or ‘foundational’) pluralism, a plurality of legal materials (coming from different law makers, private and public) and the related claim of legal pluralism, and a plurality of normative theories (most of which lend support, albeit in different ways, to pluralities of values) including the theory of normative pluralism. Moreover, there is a multiplicity of senses of belonging held by different individuals and the related claim of incommensurability of the these allegiances. Further, different types (and visions) of autonomy play a role, i.e. public and private, the latter subdivided in formal and substantive versions. Finally, the internal and external perspectives are distinguished, and different visions on these including the rejection of the distinction.
At first sight, this plurality of pluralism seems to strongly suggest that the answer to our question has to be pluralist of some sort, epistemological pluralism, normative pluralism, legal pluralism et cetera. What all these pluralist theories (in their strong forms) have in common is their claim of incommensurability: the idea that there is no viable standard for comparison, no common denominator, i.e. that the different legal systems (or values) have nothing in common, and that there is no way of establishing their relative importance, priority or hierarchy because one cannot compare apples and oranges. Given the fact, however, that radical pluralism is neither logically inevitable nor normatively appealing, at least as far as the world of private law is concerned, we must look for a more attractive alternative. Instead, this paper has argued for the viability of monism in the face of multiple pluralities.
During our journey through the world of private law in this paper we encounter nihilist, nationalist, Europeanist, cosmopolitan, dualist and pluralist views on how many systems of private law there are in Europe. None of them prove to be convincing in their purest forms. As models, which are necessarily abstract, they provide us with a clear picture of the private law world from only one perspective (one view of the cathedral). As agendas they have to face the inevitable distance between individual and collective aspirations. In our interpretative reconstruction of the private law world, both for fit and for justification, therefore we will have to borrow from more than one of these views. Thus, the result of our reconstruction of the private law world (always tentative) will be a composite. The one big, integrated system of private law is a mixed system, a colorful mosaic composed of many different elements.
In very practical terms, this means that we do not have a final answer to our question of how many private law systems there are in Europe, only preliminary answers. However, that condition of uncertainty and provisionality is fundamentally different from the certainty that pluralists claim to have that there is no unity of national, European and international law.
Number of Pages in PDF File: 43
Keywords: Legal system, pluralism, monism, integrity, nationalism, Europeanism, cosmopolitanism, private autonomy, public autonomy
Date posted: April 28, 2012 ; Last revised: July 9, 2013