Between Regulatory and Autonomy‐Based Private Law

Date01 September 2016
Published date01 September 2016
Between Regulatory and Autonomy-Based
Private Law
Hanoch Dagan*
Abstract: Theemergent European RegulatoryPrivate Law (ERPL) canbe interpreted as a
set of instruments in the service of collectivist aims and thus a radical departure of EU law
from private law; but it need not. This article offers a competing interpretation of the three
core pillars of ERPL: its reliance on the notion of regulated autonomy, its endorsement of
access justice as a normative basis and its critique of the public/private distincti on as it
relates to EU law. ERPL in my reco nstruction is a model for a priv ate law system that
embraces the liberal commitments to self-determination, and thus, substantive equality, as
its underlying normative infrastructure, is not overly embedded in the adjudicatory model
and is sensitive to public concerns. Regulated autonomy and access justice, in this view, are
local manifestations of the prescription of relational justice, which stands at the core of an
autonomy-based privat e law, properly interpreted . This understanding, I cla im, is both
normatively and jurispr udentially attractive; i t is also particularly betting to our
transnational era, beca use it provides a non-statist f oundation for the prescrip tions of
non-discrimination and accommodation.
I Introduction
By way of an alternative to the failed project of codifying private law for the European
Union, a socio-legal acco unt of the effects of EU legal in tegration on private law in
Europe describes the emergence of European Regulatory Private Law (ERPL).
offers a coherent conception of this vast body of law and renes 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
premisesof our understanding of privatelaw. This article addresseswhat 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 ofor at least ambivalence about
the public/privatedistinction as it relates to EU law. My aim is to exposesome ambiguity
in each of these pillars and to offer some friendly renements to this emerging conception
of EU private law.
I embrace the ERPL critiqu e of the traditional unders tanding of private law as th e
bastion of independence an d of formal equality; and yet, I argu e against erasing the
public/private distin ction and with it, the idea of private law. As the law of our
* Stewartand Judy Colton Professor of LegalTheory and Innovation, Tel-AvivUniversity Buchmann Faculty
of Law. Thanksto Aditi Bagchi, Nils Jansen,Karl-Heinz Ladeur,Hans Micklitz, LeoneNiglia, Yane Svetiev
and Rodrigo Vallegofor their helpful comments.
See H.-W. Micklitz, The Visib le Hand of European Regulatory Priv ate LawThe Transformation of
EuropeanPrivate Law fromAutonomy to Functionalismin Competitionand Regulation,(2009)28Yearbook
of European Law,359.
European LawJournal, Vol. 22, No. 5, September 2016,pp. 644658.
© 2017 John Wiley & SonsLtd. 9600 Garsington Road, Oxford,OX4 2DQ, UK
and 350 Main Street, Malden,MA 02148, USA

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