Private Law, Regulation, and Justice

• Date: 01 September 2016
• Author: Martijn W. Hesselink
• Published date: 01 September 2016
• DOI: http://doi.org/10.1111/eulj.12195

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 specific 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 regulation’has 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.

1

The ERPL project’saimwastoelaborate‘a normative model of a self-sufficient

European private legal order and its interac tion with national private law systems’.

2

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.

3

Consequentially, I will offer two sets of

observations, respectively, on ERPL’s 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.

1

I regardtwo texts as the principalstatement(for now) of ERPL, thatis, H.-W. Micklitzand Y. Svetiev (eds.),‘A

Self-Sufficient EuropeanPrivate Law —A Viable Concept?’,EUI Law WorkingPapers 2012/31, availableat

http://hdl.handle.net/1814/24534; H.-W. Micklitz, Y. Svetiev andG. Comparato (eds.), ‘EuropeanRegula-

tory PrivateLaw —The P aradigms Tested’,EUILaw Working Papers 2014/04, availableat http://hdl.han-

dle.net/1814/24534. In addition, I wi ll also refer to some other publications by the principal investigator

where thisis helpful for a better understanding of specific ideas underlyingERPL.

2

‘Project Description’, available at https://blogs.eui.eu/erc-erpl/project-description/.

3

Ibidem.

European LawJournal, Vol. 22, No. 5, September 2016, pp. 681–695.

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