Private Law, Regulation, and Justice

Date01 September 2016
AuthorMartijn W. Hesselink
Published date01 September 2016
Private Law, Regulation, and Justice
Martijn W. Hesselink*
Abstract: This paper critically engages with the European Regulatory Private Law thesis
(ERPL). The main strength of ERPL is that it offers an entir ely new perspective on
European private law. However, as a complete theory of European private law, ERPL is
too one-sided, both from a descriptive and from a normative point of view. With its strong
focus on the private law locked up in regulatory silos for specic market sectors, it obscures
the reality of the consumer acquis and its transformative force. A fullerpicture would include
the contoursof a loosely coherent system of Europeanprivate law that is currentlyemerging.
The main pillars of that pragmatic system are (for now) the withdrawal rights, unfair term
control, and remedies for nonconformity. Moreover, the contribution of European private
law to access justice cannot be the only standard for its evaluation and critique; at least as
important are interpersonal justice and democratic legitimacy.
I Introduction
Led by Hans Micklitz, the group conducting the research project European private law
from autonomy to functionalism in competition and regulationhas developed a distinct
thesis, which we may refer as the European Regulatory Private Law thesis, or simply
as ERPL. In this article, I will criti cally engage with the main objec tives and central
claims of ERPL.
The ERPL projectsaimwastoelaboratea normative model of a self-sufcient
European private legal order and its interac tion with national private law systems.
However, the research met hod it adopted was a sociolegal methodology,which
involved in particular the co llection of empirical mater ials and the incorporation of
these into its legal and theoretical analyses.
Consequentially, I will offer two sets of
observations, respectively, on ERPLs descript ive account of European pr ivate law
and on its normative model, in particular its conception of justice. As we will see, there
is a strong connection between these two, both in the ERPL thesis and in the alternative
account that I will propose.
* University of Amsterdam.
I regardtwo texts as the principalstatement(for now) of ERPL, thatis, H.-W. Micklitzand Y. Svetiev (eds.),A
Self-Sufcient EuropeanPrivate Law A Viable Concept?,EUI Law WorkingPapers 2012/31, availableat; H.-W. Micklitz, Y. Svetiev andG. Comparato (eds.), EuropeanRegula-
tory PrivateLaw The P aradigms Tested,EUILaw Working Papers 2014/04, availableat http://hdl.han- In addition, I wi ll also refer to some other publications by the principal investigator
where thisis helpful for a better understanding of specic ideas underlyingERPL.
Project Description, available at
European LawJournal, Vol. 22, No. 5, September 2016, pp. 681695.
© 2017 John Wiley& Sons Ltd. 9600 Garsington Road,Oxford, OX4 2DQ, UK
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