Between Regulatory and Autonomy‐Based Private Law

• Date: 01 September 2016
• Published date: 01 September 2016
• Author: Hanoch Dagan
• DOI: http://doi.org/10.1111/eulj.12193

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 befitting 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).

1

1

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

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 of—or 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 refinements 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.

1

See H.-W. Micklitz, ‘The Visib le Hand of European Regulatory Priv ate Law—The Transformation of

EuropeanPrivate Law fromAutonomy to Functionalismin Competitionand Regulation’,(2009)28Yearbook

of European Law,3–59.

European LawJournal, Vol. 22, No. 5, September 2016,pp. 644–658.

© 2017 John Wiley & SonsLtd. 9600 Garsington Road, Oxford,OX4 2DQ, UK

and 350 Main Street, Malden,MA 02148, USA