Private Enforcement and the Multiplication of Legal Orders

Abstract

The classic branches of government are legislation, administration and adjudication. These branches together maintain the national legal system: they create national law rules, apply these in individual cases, interpret them and enforce them. When horizontal shifts in governance take place, these can refer to any and all of these functions of the national state. But the several functions cannot be separated altogether. Privatizing enforcement may in the long run lead to the creation of a semi-autonomous legal order. How this can happen, and how this affects the national legal system, will be demonstrated below.

As soon as two legal orders coexist, they will interact, for example because people try to effectuate the rights granted within the private legal order through procedures of the state-based legal order. This creates an interface between the legal orders which can be described in general terms. The discussion concerning the content of this interface lies at the heart of both the multilevel and the multicultural debate.

The European legal order – as a legal order in its own right – creates its own interface with national law. But it also has an impact on the interfaces between national law and private arrangements and between the different means of enforcement within the national legal order itself. In most areas of law that fall within the competences of the EC, private enforcement is seen as a way to further European policies, not as a first step towards establishing a private legal order. This focus on uniform application and enforcement makes the EC/EU legal order appear hostile towards the existence of semi- autonomous legal orders. In this sense the EC governance model can be understood to be liberal in character.