Jan M. Smits

A European Private Law as a Mixed Legal System

In this article, it is defended that a European Private Law should not come about in some centralist unification process, but through competition of legal rules. In particular the role of the courts in doing so is emphasised. This alternative road towards a European private law is much more in line with the historical development of the ius commune than other proposed methods to reach uniformity.

The mind and method of the legal academic

Contents: Preface Introduction: A Discipline in Crisis? Part I: Legal Science: A Typology 1. Introduction 2. Descriptive Legal Science 3. Empirical Legal Scholarship 4. The Theoretical Perspective 5. What is Next? Part II: The Homo Juridicus: Towards a Redefinition of Normative Legal Science 5. Introduction 6. What Makes an Academic Discipline? 7. Normative Legal Science: In Search of the Homo Juridicus 8. Law as Spontaneous Order Part III: Methodology of Normative Science 9. Towards an Empirical-normative Approach 10. Conclusions Part IV: Organisation of the Legal-academic Discourse 11. Introduction 12. Innovation in Legal Science 13. Legal Science and Methodology 14. The Research Culture in Legal Academia Synopsis References Index

How to Predict the Differences in Uniformity between Different Areas of a Future European Private Law? An Evolutionary Approach.

In this chapter, it is investigated whether it is possible to predict the evolution of (parts of) national European private law systems toward a uniform private law. In doing so, insights of evolutionary theory, economic analysis of law and (socio)biology are taken into account in what is essentially an interdisciplinary approach toward the evolution of European private law. One of the characteristics of the now rapidly emerging discipline of European private law is after all that it is still so much in its infancy that it is very fertile to try to profit from neighbouring disciplines in establishing the foundations of this discipline. 1

The Draft-Common Frame of Reference (CFR) for a European Private Law: Fit for Purpose?

This brief editorial (published in the Maastricht Journal) discusses the Draft Common Frame of Reference (DCFR) for a European Private Law (2008). It raises three points of criticism against the draft. The first point is that the draft stands too far apart from the present (consumer) acquis. The second it that it suffers from unclear methodology. Finally, the draft CFR seems to adopt the wrong view of when uniform law exists.

The Draft Common Frame of Reference, Methodological Nationalism and the Way Forward

The Draft Common Frame of Reference for a European Private Law (DCFR) suffers from so-called methodological nationalism: the DCFR adopts a view of law and lawmaking developed for national jurisdictions and in doing so, it takes too little into account that what is best at the national level may not be optimal at the European one. The argument is made by reference to three different features of the DCFR: the idea of comprehensive codification, the choice of the relevant rules and the way in which law is represented. It is then argued that the DCFR should be presented in a differentiated way, dependent on whether its function is to create binding rules, offer a source of inspiration for legal scholarship and teaching or to take the first step towards the creation of an optional contract code.

What Do Nationalists Maximise? A Public Choice Perspective on the (Non-) Europeanization of Private Law

This contribution explores the relationship between (private) law and nationalism from a public choice perspective. Its main point is that the nationalist ideology in law is largely guided by the self-interest of citizens, legislatures, courts and academics. ‘Nationalists’ (those who favour the congruence of state and nation) maximise their chances in life by capitalising on homogeneity: by acting in accordance with the unified norms of the nation-state, they are able to put themselves in a better position. This framework is used to explain the importance of the nationalist view of law in the 19th century. In addition, it allows an analysis of both the question of how to organise private law today and the question of how to explain present resistance against Europeanization. At the normative level, the claim is made that citizens should be allowed to search for community elsewhere, e.g. by opting into European sets of norms (such as the proposed CESL). A possible explanation for resistance against Europeanization is found in the close relationship between engaging in things European and the economic or psychological advantages obtained from this. This is confirmed by a limited survey of the extent to which national academics are active in the debate on European private law, which can be explained by the different incentives universities provide academics with in obtaining tenure and prestige.

Editorial: the Action plan on a more coherent European contract law

In February 2003, the European Commission issued its Action plan on ‘a more coherent European contract law’. In this document, the Commission sets out its plans for the further development of contract law in Europe, building upon the reactions invoked by the Commission’s Communication on European Contract Law of two years earlier. The Action plan is one of the most important documents on European private law of the last few years: it provides us with insights into the European Commission’s policy regarding private law in general and contract law in particular. However, this does not mean that the views laid down in this action plan can all be accepted. On the contrary: some elements of it suffer from serious methodological weaknesses, while one part can be criticized for not providing a solution to the true problems faced by European contract law. To explain this, we need to look at the contents of the Action plan in more detail.

How to Take the Road Untravelled? European Private Law in the Making: A Review Essay

It is truism to state that a new subject within a scholarly discipline such as the law tends to suffer primarily from methodological problems. As long as these problems have not been resolved, or at least have not been provided with an answer regarded as satisfactory by most academics in the field, it is difficult to come to the substance of the new subject. The recent development of the emergence of a ‘European private law’ is a good example of this phenomenon. On the one hand, most private law scholars (and the same goes for European practitioners, although they are not as outspoken as their colleagues in the universities) agree that some sort of harmonization, unification, or even codification of private law in Europe should be realized. They reason that a truly single European market cannot properly function without a common private law. Private law (in particular the law of contract) is after all the backbone of economic activity and if there are too many differences between the legal systems of different countries, having as a consequence uncertainty, this activity is severely hampered, even if the feelings of business partners are more of a psychological nature than based on real

The sharing economy and the law: food for European lawyers

Over the last five years, the sharing economy has enjoyed a real boom. One important example of this is the creation of numerous internet platforms that have made it easier for businesses and citizens to offer goods and services to the public. While the rise of platforms allowing for the sale of goods by commercial parties was openly embraced by society, the rise of platforms such as Uber and Airbnb, allowing non-professionals to offer services, has given rise to quite some social and legal consternation. This brief contribution discusses approach of the European Union towards the sharing economy, including the European Commission’s 2016 Communication on the ‘European agenda for the collaborative economy’.

Who does what? On the distribution of competences among the European Union and the member states

The aim of this contribution is to investigate how viable criteria can be found for the optimal distribution of competences among the EU and the member states. The question of ‘who does what’ belongs to the most important questions one can ask in multilevel legal orders such as the European Union. It is a question that goes to the root of thinking about not only the foundations of European private law, but also of law in general in a globalising society. My starting point in discussing the issue is that the debate on distribution of competences in the EU should not be seen as merely a sign of Euro-scepticism. It would be wrong if the British and Dutch governments have the preconceived view that certain competences surely do not belong at the European level. But this is, unlike the reading of the German and French governments, not my interpretation of these initiatives. Cameron and Rutte seem to aim for an objective assessment of the question at which level a competence belongs. This is confirmed by the first six reports published as part of the British review of competences. These reports are rather positive and generally highlight the benefits of European integration for the UK.