Legitimacy and European Private Law (EUI Thesis)
Posted: 6 Sep 2012 Last revised: 22 Jan 2014
Date Written: 2012
This thesis inquires into the Legitimacy of harmonisation of European Private law (EPL) against the background of the broader debate on the legitimacy of the EU, and its so-called 'social' and 'democratic' deficits. While the 'social' deficit has a fundamental importance for the ‘self-understanding’ of the EU and its role in private law, the 'democratic' deficit impacts on the capacity of the democratic self-government in private law, which in the past proved fundamental for pulling out its market re-embedding function.
The legitimacy concerns increase with the expanding powers of the EU. In private law, the main triggers have been the attempts by the EU to become an exclusive locus of private lawmaking through 'full' or ‘maximum’ harmonisation of big parts of private law.
The 'deficits' of the EU are linked to the EU's postnational origin as a functional market entity. A perseverance of market as a main integration strategy and a primary performance of the EU has significantly contributed to turning the market into a cognitive framework of the EU. One of the consequences of such institutional arrangement is placing a market beyond the 'political', becoming thus a main impediment for the politicisation and the democratisation of the EU.
This thesis explores the implications of this conditioning at the 'micro' level of European Private Law. It argues that the impossibility to articulate values and rationalities independent of the market in the processes of EPL-making has significant distributive consequences, threatening to turn a fully harmonized EPL into a market dis-embedding body of law - in spite of proclaimed 'social' (or market re-embedding) objectives of the EPL.
Keywords: European Private Law, Legitimacy, Democracy, Social Justice, Social Deficit, Democratic Deficit
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