Pluralism and European Private Law

Leone Niglia

• Publisher: Hart Publishing
• Year: 2013
• Print ISBN: 9781849463379
• eBook ISBN: 9781782250647
• Edition: 1
• Topic: Law
• Subtopic: Contract Law
• Index: Law

European private law has hitherto tended to be conceptualised firmly around ideas of unity and harmony. Yet the discourse within other areas of European law, notably constitutional law scholarship, visibly adopts pluralist perspectives. This book seeks to bridge the gap between 'public' and 'private' law by looking at European private law from various pluralist positions and by investigating old and new ways in which to understand legal pluralism in general. It fills a gap in the wide literature on legal pluralism, as the first book entirely dedicated to offering an insight into legal pluralism from the vantage point of the private law domain. The book addresses critically issues such as what pluralism really means in private law and what conceptions of pluralism it embodies, including discussion about the outer boundaries of any of the pluralist understandings. Contributions address comparative, critical, historical, theoretical and normative aspects. The book provides an opportunity to engage innovatively with problematic conceptual issues which inform the work of European private law scholars, including the debate on the Common Frame of Reference Poject of the European Commision.

Part One

The New Paradigm: Pluralism Between
Private Law and Constitutionalism

Overview of Part One:
The New Paradigm: Pluralism between
Private Law and Constitutionalism

LEONE NIGLIA

THIS BOOK GRADUALLY explores various perspectives – critical, comparative/historical and theoretical – that allow a pluralist understanding of European private law. The contributors have taken up the challenge of rethinking private law in pluralist terms, and the book’s narrative presents their contributions grouped around the three key perspectives. Each part of the book focuses on a specific perspective, and reading through the chapters, one senses less a re-exploration and more a recomposition of the European private law epistemic field along pluralist lines, in keeping with the ‘map’ that I have sketched in the Prologue. Part One consists of three chapters that propose a critical reflection on ways in which to reconstruct European private law along pluralist lines. Its objective is to introduce the reader to a critical grammar that informs the reading of the chapters dedicated to comparative/historical and theoretical dimensions set out in Parts Two and Three. Part One composes that grammar through comparing and contrasting the experience of the European private law camp with that of the European constitutional law camp.

Chapter one proposes a reading of private law along pluralist lines in parallel to the last decade’s massive work on pluralism in constitutional law literature, a fundamental perspective of ‘study in parallel’ shared by all of the chapters in Part One. The reader interested in private law is introduced to the heritage of pluralism in Europe as developed in the context of constitutional law scholarship – notably, a debate that started off with the work of Neil MacCormick and which has been reinvigorated through the rich and contentious post-Maastricht discussion on the plurality of constitutional authorities in Europe. In this way, it is submitted, one is able to make sense of the place of private law pluralism in that context. The focus is on the ways in which the communities of constitutional and private law scholars have been articulating their understanding of legal pluralism in shaping their role in the integration arena. The chapter traces the parallel trajectories taken by constitutional and by private law scholarship over the past two decades or so, trajectories that have certainly been of a different kind (constitutionalism being about celebrating pluralism, private law being about hiding away from it) but that today have converged around a pluralist vocabulary. Yet both camps today experience similar problematics in embracing pluralism. Both resist acknowledging the many conflicts entailed in the contemporary European plural configuration, as well as avoid engagement in a conversation about accommodating conflicts through inclusiveness and reconciliation. Such resistance is traceable to formalist attitudes. Chapter one notes, however, critical strands of thought that distance themselves from the mainstream approach, in that they propose ways in which both to acknowledge conflicts among legal orders and regimes, and to engage in conversation about ways in which to accommodate these conflicts. Critical thought can do this, it is argued, through managing to overcome entrenched formalist attitudes. Chapter one refers to practical examples that show how accommodation practices already operate on the ground, with critical scholarship playing the key role of forging awareness of these practices as well as offering new ground for expanding them further. The many conflicts entailed in late integration (epitomised in the Laval and Viking sagas) increasingly require that private law scholars (and constitutionalists) adopt such a dual post-formalist mode of engagement geared towards awareness and reinvention. It is within this compass of possibilities that pluralism makes sense as a heuristic device for reconstructing the private law discourse towards serving a range of worthy practical goals. Inclusiveness and reconciliation, it is argued, are key to this work of reconstruction.

In chapter two, Hans-W Micklitz adopts an analytical insight that details the processes of pluralisation as they take place within European private law. The starting point is an analysis of the similarities between the debate on the European civil code and that on the Constitutional Treaty, and the weight of conceptual tools developed in both in relation to the understanding of European private law in mainstream analyses. The chapter argues that one should abandon such conceptual baggage (monism) and understand European private law as a regulatory enterprise (plural). Thus, Micklitz adopts a post-formalist mode of analysis (in my view, contributing to the disenchanting role that critical scholarship is increasingly playing, as discussed in chapter one) that looks at the dynamics of law-in-action and at a range of pluralistic regulatory ‘realities’, the political and constitutional meanings of which Micklitz understands in terms that overcome both private law and constitutional documentarism (respectively, codification and the Constitutional Treaty). Micklitz proposes a reading based on four ways in which, in his understanding, European private law is increasingly arranged pluralistically. The four ‘normative models’ are drawn from existing literature on European private law that Micklitz reconstructs as having overcome the established State-based assumptions. By engaging with a distinction between formal and informal authority, Micklitz proposes a post-ideological reconstruction that he contrasts with the perspectives of private law and constitutional documentarism. This leads to his ‘overall hypothesis’ that ‘the transformation of the Nation State private legal orders into a market State European private legal order produces a diversification of private law regimes,’ that is,

On the one hand, there are the Nation State private legal orders that lose importance in practice and, concomitantly, as a source of inspiration for the new regulatory design. On the other hand is the Market State European private legal order in statu nascendi as a self-standing legal order, which unites the ‘formal’ and the ‘informal authority’ of private lawmaking; the making of private law through the EU legislator via regulations and directives in combination and in cooperation with non-State actors; the yielding of a new pattern of justice – access justice (Zugangsgerechtigkeit).

The four ‘normative models’ that Micklitz outlines in recounting the pluralisation processes are:

(a) conflict and resistance (drawing on Caruso, Niglia and Tamahana);

(b) intrusion and substitution (drawing on Teubner);

(c) hybridisation (drawing on Duve and Sand ); and

(d) convergence (drawing, inter alia, on Van Gerven).

Interestingly, chapter two is presented as a review of State-based approaches, outlining ways in which to identify post-sovereigntist shifts which are in turn reconstructed as pluralisation processes. That is, as ways in which ‘[t]he EU is by-passing the Nation States and developing its own design for a market-based private legal order, an enabling legal order’. Micklitz thus contributes to thematising the issue of accommodation through locating the pluralist challenge in relation to the European regulatory realm, a web of sectoral rules on telecommunication, energy, financial services and transport. For example, his consideration that ‘regulatory agencies play a key role’ and that ‘the vast majority of conflicts are solved within or through the agencies and the newly-established dispute settlement mechanisms’ contributes to our understanding of the kind of accommodation practices at stake, adding to the list of those considered in chapter one.

In chapter three, written with an eye on constitutional law, Massimo La Torre raises a range of normative concerns that he identifies through critical consideration of pluralist readings. That chapter highlights critical aspects that private law should take seriously. From this vantage point, even if one embraces the concerns of critical scholarship (such as the kind of scholarship discussed in chapter one), and thus pluralist frameworks for analysis and action, one must come to terms with the challenge of confronting certain normative dilemmas. La Torre criticises the ‘national sovereignty paradigm’ that poses State and nation as a given in relation to constitutionalism. He proposes to give ‘a priori worth for constitutionalism’ neither to State-based nor to nation-based conceptions but to ‘discourse’, understood as ‘experience of communication and interaction’. On this basis, La Torre critically addresses what he sees as ‘the rise of a global constitutional law speech’, centred on the proposition of a ‘constitutionalism without a constitution’ and entailing a decoupling of authority from ‘output’ and of constitutionalism from democracy, with constitutionalism becoming identified with forms of adjudication severed from constitutional authorship. The chapter then puts forward a critique of certain forms of balancing seen as being at odds with ‘an ideal construction of the common good’, coupled with a parallel critique of the employment of ‘some broad, generous doctrinal formulae’ (such as ‘legal pluralism’ or ‘asymmetrical, “counterpunctual” law’ or ‘constitutionalism in a new, “cosmopolitan” key that is, possibly, without constitution and democracy’) that, in La Torre’s view, help little in addressing the deep problems of how to ensure that the law is responsive to concerns regarding democracy and constitutional authorship. In the final pages of the chapter, otherwise dedicated to European and global constitutionalism, the author applies the same considerations to the private law realm.

La Torre’s chapter links in with the private law debate as understood in this book in at least two ways. First, it alerts private law scholars to the challenges regarding the democratic base of the Europeanisation of private law. Secondly, it shows how legal pluralism is inextricably linked to issues of democracy and legitimacy, and that, in devising ways for settling conflicts among legal orders and regimes, we should remind ourselves of the urgency of taking democracy and legitimacy seriously. One might read all this as a reworking of the classical opposition between pluralists and anti-pluralists, of which we are all well aware, but in my view there is more to it than this. It appears that the more one embraces pluralisation narratives (see chapter two by Micklitz), as one should if one intends to deal with real-life matters (see chapter one by Niglia), the more one runs the risk of acting to the detriment of democracy and similar normative material (see chapter eleven by Hesselink; chapter three by La Torre; and chapter twelve by Niglia), and the more one must engage with the problematic of the justification of law’s plurality in normative terms. These tensions, which arise from considering descriptive, analytical and normative perspectives at once (as described in the three chapters), make us rethink the poverty of any attempt to limit private law scholarship to the realm of formalistic contemplation, towards creating an opportunity for social engagement with the challenge of conflict resolution (see Prologue). A lesson may be taken from all of this, which is that forging narratives about conflicts and accommodation must be done bearing in mind the normative grounding of law. The phenomena of conflicts and the challenge of accommodation entailed in the plural predicament demand more than functionalist perspectives – they demand an emphasis on inclusiveness and reconciliation (see chapter one) and a concern for ‘self-authorship’ (see chapter three).

1

The Double Life of Pluralism in
Europe: Between Constitutionalism
and Private Law – Arguments for a
Post-Formalist Paradigm

LEONE NIGLIA

A TWO-SIDED DESTINY presides over the discourse on pluralism in European law. In the European constitutional law field, there is discovery and celebration of plural material.¹ In stark contrast, forget-fulness and marginalisation of plural material hold sway in the European private law field.² Pluralism in constitutional scholarship has become the key vocabulary for debating (and, for some, even the panacea for resolving) the problems entailed in the many conflicts of authority attached to late integration.³ It has developed through a combination of narratives depicting the fragmentation of classical, bounded forms of authority and representation and narratives speculating on the possibility of ‘recovery’ from fragmentation through imaginative and doctrinal constitutional work. A variety of voices have been raised, ranging from moderate to radical pluralism. In the private law field, approaches that emphasise the plurality of legal orders have been left to one side and at best marginalised in orthodox accounts.⁴ Here fragmentation has a negative connotation only,⁵ and unitarian and hierarchical narratives have won the day, coupled with institutional tools of harmonisation that have only accommodated or even exacerbated the hierarchical ethos in scholarship – from minimal to full harmonisation⁶; from directives to code.⁷

In this chapter I first map what I believe to be the key features underlying the pluralist debate in the constitutional field and then consider the state of the art of the private law field. I note how the recent emergence of pluralist patterns in the private law field was almost immediately abandoned, which is traceable to a maximalist kind of formalism that has characterised the deep structures of the European private law discourse ever since its inception.⁸ I then consider how the constitutional field, in reverse mode, has reached a point where a minimalist yet pervasive kind of formalism prevents constitutionalists from facing the very problems of authority that the lenses of pluralism both enable them to encounter and oblige them to deal with. It is then submitted that both fields need to overcome their formalistic predicament (whether minimal or maximal) in order to complete the pluralist trajectory, that is, for them effectively to develop ways in which to deal with the problem of accommodating conflicts among legal orders and regimes as they present themselves in Europe’s plural configuration.⁹

I. PLURALISM AND CONSTITUTIONAL LAW

The pluralist movement which has emerged from European constitutional scholarship is characterised by a variety of voices, including nationalism, arguments from principles, contrapunctual theories, legalism, epistemic readings, moderate and radical approaches.¹⁰ There are nevertheless various ways in which all such theories, despite their obvious differences, converge. First, they acknowledge a variety of factors – all ‘plural’ in nature – including the plurality of constitutional sources, jurisdictions, interpretative patterns, powers and polities.¹¹ Secondly, all equally acknowledge, implicitly or explicitly, problems of authority (and, relatedly, problems of representation). Such problems are articulated in a typically pluralist vocabulary, that is, as conflicting authority claims coming from Europe’s multi-level governance structure ...

Table of contents

• Cover
• Title
• Copyright
• Preface
• Summary Contents
• Contents
• List of Contributors
• Prologue – Of Pluralism and European Private Law
• Part One: The New Paradigm: Pluralism Between Private Law and Constitutionalism
• Part Two: Comparative and Historical Perspectives
• Part Three: Theoretical Perspectives
• Epilogue: Of European Private Law and Pluralism
• Index