Why We Have No Theory of European Private Law Pluralism

Abstract

The recent popularity of legal pluralism has now reached the area of European private law. In this paper I scrutinize the concepts of legal pluralism used by three of its most prominent proponents: Pierre Legrand, Jan Smits, and Thomas Wilhelmsson. I do not offer fully-fledged criticism of their theories (each of which are among the most fascinating and helpful in the European private law debate) but only address their use of ideas of legal pluralism, and the relation of these ideas with the legal pluralism debate. My analysis shows not only that these three use sharply different concepts of legal pluralism, but also, that none of these three concepts is in accordance with traditional definitions of pluralism. Further, it turns out that several points of criticism can be raised against their theories that stem from the legal pluralism debate. I do not, here, take the second step of determining whether an actual concept of European private law pluralism can be established – and whether such a concept can withstand the criticism that has been voiced against the idea of legal pluralism.

Keywords: european law, private law, legal pluralism, comparative law