Between Regulatory and Autonomy-Based Private Law
27 Pages Posted: 18 Nov 2015 Last revised: 8 Feb 2016
Date Written: November 16, 2015
By way of an alternative to the failed project of codifying private law for the European Union, a socio-legal account of the effects of EU legal integration on private law in Europe describes the emergence of European Regulatory Private Law (ERPL). ERPL offers a coherent conception of this vast body of law and refines its underlying normative foundations. It also offers a provocative and exciting perspective on private law, which upsets conventional wisdoms and challenges us to rethink some of the most fundamental premises of our understanding of private law. This article addresses what I see as three core pillars of ERPL: the reliance on the notion of regulated autonomy, the endorsement of access justice as a normative basis, and the critique of – or at least ambivalence about – the public/private distinction as it relates to EU law. My aim is to expose some ambiguity in each of these pillars and to offer some friendly refinements to this emerging conception of EU private law.
I embrace the ERPL critique of the traditional understanding of private law as the bastion of independence and of formal equality; and yet I argue against erasing the public/private distinction, and with it, the idea of private law. As the law of our interpersonal relationships as free and equal persons – as opposed to our interactions as patients of the welfare state or as citizens of a democracy – private law offers a distinctive and valuable source of normativity, which is particularly important in our transnational private relationships where there is no common loyalty to a public (state) actor. Since the conventional, private law libertarian, conception of the laws of property, contracts, torts, and unjust enrichment cannot plausibly play this role, it should be supplanted by its liberal counterpart, which is founded on the commitment to individual autonomy as self-determination (rather than independence) and thus to substantive (not formal) equality. Hence my claim that ERPL can, and I argue should, be refined to stand for a prominent exemplar of a via media approach to private law, premised on a commitment to core liberal values.
My two key interventions in this article follow from its main point as per my proposed interpretation of ERPL. Thus, I suggest unpacking the notion of regulated autonomy, which currently conflates two different features of the term. The prescription of extending autonomy by, for example, non-discrimination rules that ensure inclusion in market activity, is a straightforward implication of the underlying normative commitments of private law, properly understood. But the interpretation of regulated autonomy as commandeering individual interactions to collective purposes is quite different: while in principle, a liberal private law, which must be attuned to collective obligations, can accommodate such purposes, it should do so cautiously given their possible ramifications on both individuals and their private relationships.
Similarly, this article offers an autonomy-based foundation to the notion of access justice, which is the underlying theme of ERPL. Access justice, to be sure, serves also public considerations. But it need not, indeed should not, be based solely on these concerns. Reciprocal respect to our right to autonomy as self-determination (as opposed to the impoverished sense of independence) entails a duty of relational justice, which provides a non-statist foundation for the prescriptions of non-discrimination and accommodation. This means that setting aside access barriers (especially barriers that exclude weaker people from markets) should be interpreted as an implementation of this duty, which perfects private law, rather than undermining its premises.
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