First or Second Best? Judicial Law-Making in European Private Law

24 Pages Posted: 4 Oct 2016

See all articles by Chantal Mak

Chantal Mak

University of Amsterdam - Centre for the Study of European Contract Law (CSECL); University of Amsterdam - Faculty of Law

Date Written: September 22, 2016

Abstract

This paper examines the interaction among institutions in European private law in times of societal change. It is submitted that a translation of national constitutional models of division of powers to the European Union cannot fully do justice to the nature of the interplay of courts and legislatures in Europe’s multi-level private legal order. A clarification of the legal-political significance of judicial law-making against the backdrop of the economic crisis can better explain judicial activism in certain areas of European private law. It also serves to address the (re)definition of the principle of democracy in this field and the possible contribution of democratic experimentalism. This, then, provides starting points for a re-imagination of the judiciary’s role in the communicative process of generating legal normativity in European private law.

Keywords: European private law, democracy, societal change, national constitutional models, interaction among institutions, European Contract Law, judicial law-making

JEL Classification: K12

Suggested Citation

Mak, Chantal, First or Second Best? Judicial Law-Making in European Private Law (September 22, 2016). Centre for the Study of European Contract Law Working Paper Series No. 2016-12, Available at SSRN: https://ssrn.com/abstract=2847586 or http://dx.doi.org/10.2139/ssrn.2847586

Chantal Mak (Contact Author)

University of Amsterdam - Centre for the Study of European Contract Law (CSECL) ( email )

P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

University of Amsterdam - Faculty of Law ( email )

Amsterdam, 1018 WB
Netherlands

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
187
Abstract Views
932
rank
175,291
PlumX Metrics