Democracy and (European) Private Law: A
Functional Approach
Jan M. Smits*
I.
Introduction
The development towards a Common Frame of Reference
for European private law[1]
not only raises questions about what should be the contents of private law
rules for the European Union,[2]
but it also challenges our traditional understanding of how rules of private
law should come into being. In the European member states, private law is
traditionally ‘made’ in close cooperation between the national legislatures and
the courts: it is the result of an intricate decision-making process at the
national level, in which legal academia is often also involved.[3]
This is, to varying degrees, true for both civil law and common law
jurisdictions.
The drafting of the Common Frame of Reference
prompts the question to what extent its rules should meet similar requirements
as to legitimacy as the national rules in the member states. The prevailing
view seems to be that the rules of the Draft CFR (DCFR) do not meet the
requirements of democratic legitimacy necessary in the field of private law.
Given that the DCFR was drafted by legal scholars, united in the Study Group on
a European Civil Code and in the Research Group on the Existing EC Private Law,
the DCFR would, in this respect, be a typical example of Professorenrecht. This is also acknowledged by the drafters, who
presented their text as an “academic CFR”, a scholarly product that is not
politically legitimised and that, at best, could form the basis for a
“political CFR” to be drafted by the European Commission. But it is difficult
to deny that, in drafting the DCFR, many relevant choices were made. In a
recent book, Bastiaan van Zelst therefore sketches the following objections
against this working method:
“This
seems worrying from two different angles. First of all, the scholars that are
involved in the drafting of the DCFR lack democratic legitimacy. The group
represents neither all of the populations of the member states, nor their
political convictions. Secondly, it is questionable whether professors should
be vested with the translation of social-political reality into legislation. In
a democratic society, this would seem to principally be the task of the
(democratically legitimised) legislature […]”.[4]
Other authors, most of them united in another group,
namely the Study Group on Social Justice in European Private Law,[5]
also hold the view that the Europeanisation of private law should take place in
a much more democratic way than is the case at present. This would not only be
true for the DCFR, but for any attempt to create a European private law. These
authors are clearly influenced by the Critical Legal Studies view that all law,
including private law, is politics.[6]
In other words, if private law shapes the distribution of wealth in a modern
society, creating a future European private law would primarily be a political
process. Therefore, the rules of contract law that account for the right
balance between the free market and social justice should be determined in a
democratic way. Only consulting ‘stakeholders’ and legal practice in drafting
new European rules -as the European Commission proposes- is then not enough;
instead, the European Parliament and national legislators, including national
parliaments, must be involved.[7]
From a different theoretical perspective, Alain Verbeke recently also argued
that the Europeanisation process of private law should be “re-politicised”.[8]
This is an important view: if these authors are correct about their ‘democracy
thesis’, it means that European private law needs to be ‘made’ in a very
different way than it is now.
In this contribution, I argue that this view -the ‘democracy
thesis’- is mistaken. The present Europeanisation and globalisation processes
should radically change our view of how rules, either existing or new ones, in
the area of private law are legitimised. My aim is not to reiterate the entire
debate about the legitimacy of new modes of governance,[9]
but to focus directly on rules that seek to regulate the conduct of private parties.
It is thus the core of private law, and specifically the law of contract, with
which I am concerned. In this area, I argue that there are different (and
better) ways of legitimising private law outside of national parliaments.
This contribution is structured as follows. Section
II begins with a more general overview of new types of rule-making that,
although they evade the democratic decision-making process, are important in
regulating the behaviour of individuals and states. This raises the question of
to what extent the emergence of these new types of rules pose a problem for the
legitimacy of private law. I argue that the problem arises only if we perceive
legitimacy in a very restrictive way, limiting it to democratic decision-making
by national parliaments. Section III therefore proposes an alternative
approach, a functional one, in which the concept of democracy is deconstructed
into various building blocks. This more general theoretical framework should
then allow us to assess the Draft CFR in more detail in section IV. Section V
sums up the main argument.
II.
Law without a state: A problem of democracy?
The drafting of legal rules by academics for the
future application of these rules by private parties or states -as in the case
of the Draft CFR- is only one example of so-called “private global
norm-production”.[10]
Over the last decades, an increasing number of rules and policies were
developed beyond the nation-state.[11]
Apart from the European Union, which has its own procedures for legitimising the
rules it produces, important policy decisions are made by organisations such as
the WTO, IMF and World Bank. In the area of private law, the age-old example of
the lex mercatoria[12]
is now supposedly supplemented by the “lex
laboris internationalis”[13]
and the “lex sportiva internationalis”.[14]
In addition to this, types of voluntary law,[15]
such as norms adopted by corporate networks -the most important example being
codes of conduct for corporate social or environmental responsibility-, rules
of standardisation organisations for technical standards, such as the “codex alimentarius”, and other types of
self-regulation[16]
are also supposed to influence the conduct of private parties.
Most of these authoritative rules, norms and
policies from “sites of governance beyond the nation-state”[17]
would not count as binding law in a traditional conception of legal rules: they
do not meet the formal criterion of being enacted by the relevant authorities.
But they often do set the norms for specific groups of people and are important
in predicting their behaviour. One can argue that, as the legitimacy of law was
found in the laws of nature in the seventeenth and eighteenth centuries and in
democratic political legislation in the nineteenth and twentieth centuries, it
is now time to find again a new source of legitimacy for legal rules.[18]
It is clear that such a new source of legitimacy cannot be found in the
authority of the state. Not only is the authority of the norms that were just
described not dependent on the state, their authority is also no longer
exercised within clearly defined territorial entities; instead, the relevant
rules are often chosen and applied across existing borders.[19]
Issues that were previously within the domain of democratic decision-making at
the national level have thus shifted to the international level.
If we accept that this type of lawmaking beyond the
national state is becoming more and more important, what does this mean for the
democratic legitimacy of the rules created in this process? In a recent
article, Grainne De Burca distinguishes several approaches in understanding the
relationship between democracy and trans-national law.[20]
If legitimacy is a legal concept that cannot be replaced by efficiency or
expertise -meaning: public power exercised outside of the authority of the state
should not escape the expectation of democratic legitimation-,[21]
the best approach is one that tries to find alternatives
for democracy. The democratic ideal should then be pursued in forms other
than through the national parliament. With the multiplication of legal sources,
the need for such a rethinking of democracy is very clear.[22]
The opposing view -now that there is no trans-national demos and electorate,
democracy at another level than the national one is impossible-[23]
cannot be accepted.
The important insight to be derived from this is
that (private) law does not necessarily have to find its legitimacy in the
decisions of national parliaments.[24]
Such a view would regard legitimacy in a very restrictive way. It is true that,
since the eighteenth century, democracy was closely associated with the state,
but this need not be the case. The idea of democracy was present long before
the nation-state was developed,[25]
and now that we accept law that transcends the boundaries of a territory and a
people, we need to again dissociate democracy from the state. The question
therefore is how to change our conception of law, very much based on the
nation-state experience, so as to meet the different conditions of global
governance.[26]
The importance of such a venture is paramount because, as one author puts it, “democracy
will be possible beyond the nation-state – or democracy will cease to be
possible at all”.[27]
In the next section, it is attempted to deconstruct
democracy into various building blocks. If we establish the functions that
democracy currently fulfils, we can subsequently see whether these functions
can be fulfilled in another way than through national parliaments.
III.
Deconstructing democracy
The approach followed in this section is one in
which the concept of democracy is deconstructed into various building blocks.
If we are able to define the functions of democracy, it is possible to
establish whether these functions can also be fulfilled in another way in the
area of European or even global lawmaking. It is clear that finding such
substitutes for the democratic legitimacy of law is only possible when we stop
thinking in terms of national states or parliaments. Instead, the legitimacy of
law should be found in other factors. It is also important to realise that our
concern is not with all aspects of
democracy or of tasks of national parliaments: as indicated above, this paper
only deals with the lawmaking process, in particular, in the area of private
law. Having said this, this section first suggests that it is not democracy
that is at stake when drafting law, but rather the legitimacy of the rules in question. Second, it is argued that such
legitimacy can be found in three different factors.
It should first be acknowledged that it is difficult
to use the term democracy for
something that is not related to representative government. The present
connotation of the word refers so much to parliamentary representation that it
can be confusing to use it for mechanisms that are equal to democratic
decision-making at other levels than the state. This is one of the reasons why
Rubin suggests abandoning the term in political analyses.[28]
It seems better to use the word legitimacy instead, even though this term does
not have a fixed meaning.[29]
The legitimacy of a rule could refer to the political procedures used to put
that rule into place, but also to its moral contents or acceptance. In my view,
it is this latter meaning that is most important: the legitimacy of a rule
refers to the perception that it is the most desirable or proper rule to be
adopted in the given circumstances.[30]
This makes legitimacy not only dependent on the acceptability of those being
affected by the rule, but also on the acceptance by society in general or by
the academic forum.[31]
It still leaves open the question of which criteria are decisive for this
legitimacy to exist.
Political science tells us that democracy fulfils
three different functions: participation, accountability and transparency.[32]
Participation at the national level traditionally consists of the parliamentary
representation of everyone in everything. However, when the polity is no longer
defined along territorial lines or on the basis of a people -as is the case
with the type of rules discussed here- such participation can no longer be
based on state institutions. With the trans-nationalisation of law, the more
effective forms of participation are likely to be based on groups, creating new
political communities along functional lines.[33]
Accountability can be defined as the principle that
one is responsible for one’s conduct vis-à-vis
another person or organisation. Such responsibility usually includes the
obligation to inform that person or organisation about one’s past or future
actions, to justify them and to be held responsible in case of misconduct.[34]
Accountability is thus primarily an “ex post governance mechanism”.
Traditionally, accountability at the national level is an electoral one:
officeholders have to account to those who are entitled to vote for their
election. If their performance is insufficient, they will not be re-elected.
But this is not a very precise or efficient accountability mechanism: voters do
not provide reasons for their votes and can be motivated by many other motives
than the standards one wants the officeholders to meet. There are many other
types of accountability one can think of,[35]
including fiscal accountability through audit regimes, legal accountability -the
accountholder is held liable for a violation of a standard-, hierarchical
accountability of employees vis-à-vis
their superiors and accountability through the market where the satisfaction of
those affected by a policy decides its success.
Transparency, finally, refers to decision-making
that is open to the gaze of others -does not take place behind closed doors-
and that is based on freely available information. As a political norm,
however, transparency is rather vague:[36]
it does not make clear who these others are and which information exactly is to
be shared with them. Surely, there can be no complete access to government
information for everyone and for everything. This makes it important to ask why
we actually need transparency. In any democratic theory, the need for openness
of government follows from the fact that people can only on the basis of such a
theory make a well-informed, rational choice for the government by which to be
governed. It also facilitates the public debate crucial in a democratic society
and a prerequisite for holding government officials accountable.[37]
Again, this presumes that the transparency requirement is directed towards the
public at large. Another approach is to apply the transparency requirement to
the group of people most affected by the rules in question. If an important
condition for a democracy to be successful is the quality of the deliberation,[38]
it may well be that informed deliberation among specialists leads to greater
legitimacy than a general debate among non-specialists.
If we accept these factors as the building blocks of
democracy, we have a tool to deal with legitimacy at the trans-national level.
One important advantage of this approach is to recognise that these criteria
can be met to a greater or to a lesser extent. Often, we do not need the full
participation of everyone when dealing with certain issues. Likewise,
accountability and transparency are also gradual concepts.[39]
The exact levels of participation, accountability and transparency to meet the
legitimacy requirement can thus be made dependent on several factors.[40]
One factor concerns the type of rules: rules of a more technical nature require
less ‘democratic’ legitimacy than rules about issues that are already highly
politicised.[41]
Thus, legitimacy can lie in the merits of the decision-makers, such as their
ability to give independent expertise.[42]
Another factor concerns the level of harmonisation: minimum harmonisation may
need less legitimacy than full harmonisation.
It should be emphasised that this approach also
works in the other direction: rules that did
pass through the national democratic decision-making process may not meet the
requirements of legitimacy as just defined.[43]
The mere fact that a democratic process took place is then not enough to
conclude that a rule is sufficiently legitimate.[44]
IV.
The legitimacy of the Draft CFR
With the framework provided in the previous section,
we are now able to turn back to the Draft Common Frame of Reference for
European private law. Are Van Zelst and others right in claiming that private
law should come about in a democratic process with the involvement of national
parliaments -the ‘democracy thesis’- or is there another way to legitimate the
rules of the DCFR? In this section, I provide three arguments as to why
(European) private law may not need a democratic basis in the traditional sense
because it can meet the three building blocks of democracy in another way.
After a discussion about accountability (A) and participation (B), the section
on transparency (C) reveals that the nature of private law partly stands in the
way of considering it as an area subordinate to policymaking.
A.
Accountability: Legitimacy through jurisdictional competition
In the brief characterisation of accountability
provided above, it became clear that the core of the concept consists of a
relationship between the relevant actors and a forum and that such a
relationship can be established in different ways. If the rule-maker cannot be
held responsible in the traditional way -by being voted away-, what could be an
alternative? Without claiming this is the only possible way of enhancing the
legitimacy of trans-national rules,[45]
I believe that market accountability can be much more important in legitimating
law than is usually assumed. This is in particular true in those areas of law
that contain many non-mandatory rules, such as the law of contract. If market
accountability in, for example, schools means that good schools attract
students whereas bad schools are held accountable by students that leave, a
similar mechanism can operate in the fields of facilitative law.
This view is, of course, not new. The theory of
jurisdictional competition, as developed by Charles Tiebout,[46]
emphasises that when parties have the freedom of choice as to the applicable
legal regime -as is the case in large parts of contract law-, they will choose
the regime they like best. Such jurisdictional competition is an alternative to
allocating local public goods in a political decision-process: the preferences
of citizens can be established by allowing the citizens to choose for a
particular legal regime, even without these citizens moving physically.
There are limits to establishing preferences by
jurisdictional competition.[47]
The most important limit arises when law is regarded as mandatory by the state.
It is difficult to imagine that such mandatory national law would be set by an
authority beside the national lawmaker because this concerns the fundamental
social contract between the governed and the government.[48]
But when designing the structure of relationships between economic entities,
primarily driven by market efficiency, it is not clear why it is the state that
should guarantee a democratic process.[49]
But even if this restriction is accepted,
jurisdictional competition remains an important alternative to centralist lawmaking
in the area of contract law, the backbone of the DCFR. This does mean, however,
that we have to abandon the idea that there is only one legitimate group
responsible for lawmaking. Too often, only nation-states are seen as legitimate
democratic lawmakers. But in an increasingly globalising and interconnected
world, there is no necessary relationship between the nation-state and the
legitimacy of law. The number of legal regimes need not be the same as the
number of nation-states.[50]
Consequently, multiple, overlapping authorities may come to coexist, with
individuals primarily choosing their own authority.[51]
Particularly in the context of the Common Frame of
Reference, we should be aware that choice is essential for its proper
functioning. The DCFR provides definitions of legal terms, fundamental
principles and model rules and can be used as a ‘toolbox’[52]
by the European legislator as a source of inspiration for the ECJ and national
courts and as an optional code for contracting parties that want to make the
CFR the law applicable to their contract. All these functions imply that the
DCFR is only applicable if the relevant actors prefer it over national law. If
the DCFR is not made applicable by
the contracting parties or is not used
as a source of inspiration by legislators or courts, the drafters are held
accountable for the lack of success of this particular legal regime.
B.
Participation: The experience with optional instruments
It was seen above[53]
that the legitimacy of rules does not necessarily have to be based on the
participation of everyone in everything. The adherents of the ‘democracy thesis’
set out in section I seem to suggest the opposite: since all law is politics,
changing the law requires a political decision by a parliament that should be
involved in both the drafting and the adoption of the rules. This is a rather
traditional view of democratic input and one that is clearly contradicted by
our experience with the drafting of civil codes.
First, even mandatory national civil codes were often
drafted without much input from parliaments. It is true that the final decision
about the enactment of a code is taken by national parliaments -and when it
would come to the introduction of a binding
European civil code, this should also be the case-, but in drafting the
code, the relevant decisions are usually made by the drafters themselves.[54]
This makes sense because of the often highly detailed and technical questions
involved in the drafting process. Only when it comes to politically sensitive
issues, such as the establishment of the proper level of consumer protection,
parliaments should be involved. An important exception to this working method
was the procedure followed in the establishment of the new Dutch civil code.
Immediately after the start of the drafting process in 1947, a list of
questions about key issues was presented to Dutch parliament.[55]
However, insofar as these questions involved matters of the code’s structure
and other typically scholarly issues, I do not see how any parliamentary input
can be helpful. For instance, the question of whether a general action for
unjust enrichment should be part of the code[56]
is not a question to be decided by parliament.
Second, it should be re-emphasised that present
efforts to Europeanise private law -and in particular the work on the DCFR-
will not lead to rules that are binding in the same way as we are familiar with
at the national level. If the DCFR is primarily a source of inspiration for the
European legislator and the courts, or is at most an optional contract code, its
legitimacy need not be found in the traditional democratic decision-process.
This is confirmed by the success of various optional instruments that came into
place without any input of parliaments in the drafting stage. Instead, the
input consisted of a parliamentary decision to adopt an already existing instrument drafted by legal
experts. The two most important examples of such instruments are the American Uniform Commercial Code (UCC) and the
United Nations Convention on the International
Sale of Goods (CISG). In these two cases, the only ‘democratic’ input
consisted of individual American state parliaments -in the case of the UCC- and
of national parliaments -in the case of the CISG- adopting an already existing
instrument. These experiences indicate that parliaments may not necessarily be
involved in the drafting of a successful code.
C.
Private law: Design or organism?
The third building block of democracy relates to the
requirement of transparency. If applied to rule-making in the field of private
law, it is my view that, in particular, the quality of the deliberation is
important: we have seen before that informed deliberation among specialists may
lead to greater legitimacy than a general debate among non-specialists. When
applied to private law, what comes closest to the transparency requirement is
that new statutes and case law are assessed on the basis of the already
existing coherent system, which provides us with the criteria to assess to what
extent the new rules fit into the existing normative order.[57]
At the same time, however, we should be cautious in
applying the requirement of transparency to the field of private law as if this
is just another policy field. The reason for this relates to a more general
understanding of private law. It would only be necessary to render private law
completely subordinate to democratic decision-making if it is a means to a
(political) end.[58]
The question is whether this view of private law as a matter of conscious design by some legislator is in line
with the nature of the field. Most of the time, private law is seen as
independent from state institutions, having a rationality of its own.[59]
The private law system has developed over the ages in a long process of trial
and error.[60]
The spontaneous development towards the standards that a community prefers
provides this area of law with a rationality of its own which is independent
from most public aims.[61]
If we thus understand private law more as an organism than as a product of explicit design,
it becomes clear why democratic input in this area of law can only have a
limited impact. The Machbarkeit [“makeability”]
of the law of contracts, tort and property is limited, and the view that
private law is an instrument with which to change the existing distribution of
power and richess[62]
should be regarded with suspicion. This would mean that private law serves
distributive justice, a view defended before by Anthony Kronman.[63]
The most important objection against this position is that distributive justice
requires a political decision to choose, out of all possible distributions of
wealth, one that best establishes the desired collective social, economic or
political goal. If private law is thus made part of establishing distributive
justice, it is made subordinate to this goal; if this goal is not reached,
private law fails. In my view, however, it is not the state that is to decide ex ante what a just private law
requires. At best, the result can be corrected ex post.[64]
Moreover, the redistribution of welfare through (in particular) contract law is
doomed to fail because future contracting parties are not likely to contract
with ‘weaker’ parties if they would run the risk of avoidance of their
contract. This is also the message of Charles Fried:
“Redistribution
is not a burden to be borne in a random, ad hoc way by those who happen to
cross paths with persons poorer than themselves. Such a conception,
heart-warmingly spontaneous though it may be, would in the end undermine our
ability to plan and to live our lives as we choose”.[65]
The above does not imply that democratic input is
never useful; it does imply, however, that the degree of legitimacy is
dependent on the type of law being put into place. Facilitative law needs less
legitimacy than mandatory law. Put otherwise: national democratic input is
useful in the case of interventionist law, such as consumer protection and
employment law, because preferences as to the level of intervention differ
between countries. In facilitative law, preferences are better revealed by
jurisdictional competition.[66]
V.
Conclusions
The main argument of this article is that
‘democratic’ legitimacy does not have to come about through territorial
entities such as national parliaments. There are other methods of legitimating
law; which method is best, depends on a range of factors such as the type of
rules and the level of harmonisation. In the case of the Draft CFR, it is
important to realise that it is at most a source of inspiration for European
and national legislators and courts and an optional code to be chosen by
contracting parties if they believe it serves their interests better than
national law. This optional character of the DCFR must mean something for its
legitimacy. It is primarily the participation of the mentioned actors that
decides on the actual legitimacy of the non-binding DCFR. This does not exclude
that parliaments can still play a role -for example, by ex post accepting “public acts characterised by expertise and
rationality”-[67]
but it is different from the role they have to play in setting mandatory rules.
The approach set out in this contribution opens the
possibility to investigate whether the new types of law described in section II
meet the necessary requirements of legitimacy. The mere fact that these types
of law are often set at the European or global level and do not pass through
national parliaments is, as such, not relevant in assessing their merits. What
is relevant is to what extent they meet the requirements of participation,
accountability and transparency. This differentiated approach, in which each
new type of rules is assessed on the basis of these factors, was applied here
to the case of the DCFR. It shows that the ‘democracy thesis’ cannot be
accepted: new forms of private law require new forms of legitimacy.
* Jan
Smits is professor of European Private Law and Comparative Law at
[1] C. VON BAR et al, Principles, Definitions and Model Rules of
European Private Law: Draft Common Frame of Reference, Interim Outline
Edition, München, Sellier, 2008.
[2] The
Draft CFR was already elaborately discussed from this, and other, perspectives.
See, e.g., A. VAQUER, European
Private Law Beyond the Common Frame of Reference, Groningen, Europa Law
Publishing, 2008, special issue of the European Review of Contract Law , 2008, No 3, pp. 223-454; F. CAFAGGI and H. MICKLITZ, After the Common Frame of Reference: What Future for European Private Law?,
Cheltenham, Edward Elgar, 2009.
[3] Cf R.C.
VAN CAENEGEM, Judges, Legislators and
Professors: Chapters in European Legal History,
[4] B. VAN ZELST, The Politics of European Sales Law, The Hague, Kluwer Law
International, 2008, pp. 244-245.
[5] STUDY GROUP ON SOCIAL JUSTICE IN EUROPEAN
PRIVATE LAW, “Social Justice in European Contract Law: A Manifesto”, European Law Journal, 2004, pp. 653-674.
See also: M.W. HESSELINK, “The
Politics of a European Civil Code”, European
Law Journal, 2004, pp. 675-697; M.W.
HESSELINK, “The Ideal of Codification and the Dynamics of Europeanization:
The Dutch Experience”, in S. VOGENAUER and
S. WEATHERILL, The Harmonisation of
European Contract Law, Oxford, Oxford University Press, 2006, pp. 39-70; U. MATTEI, “Hard Code Now! A Critique
and a Plea for Responsibility in the European Debate over Codification”, in U. MATTEI, The European Codification Process: Cut and Paste,
[6] Cf D.
KENNEDY, “Form and Substance in Private Law Adjudication”, Harvard Law Review, 1976), pp. 1685-1778;
D. KENNEDY, “The Political Stakes in
‘Merely Technical’ Issues of Contract Law”, European
Review of Private Law, 2002, pp. 7-28.
[7] Cf STUDY
GROUP ON SOCIAL JUSTICE, “Manifesto”, o.c.,
p. 669.
[8] A. VERBEKE, “Negotiating (in the Shadow of a) European Private Law”, Maastricht Journal of European and Comparative Law, 2008, pp. 395-413, at note 15.
[9] Cf e.g. D. CURTIN and R.A. WESSEL, Good Governance and the European Union, Antwerp, Intersentia, 2005;
B. EBERLEIN and D. KERVER, “New Governance in the European Union”, Journal of Common Market Studies, 2004,
at p. 121.
[10] See,
for this term, G. TEUBNER, “Breaking
Frames: The Global Interplay of Legal and Social Systems”, American Journal of Comparative Law, 1997, pp. 149-169, at p. 157.
[11] See, for an elaboration of the idea of private law beyond the nation-state, R. MICHAELS and N. JANSEN, “Private Law Beyond the State? Europeanization, Globalization, Privatization”, American Journal of Comparative Law, 2006, pp. 843-890; N. JANSEN and R. MICHAELS, “Private Law and the State”, Rabels Zeitschrift, 2007, pp. 345-397; and the special issue of the American Journal of Comparative Law, 2008, pp. 527-844.
[12] Cf recently V. PIERGIOVANNI, From Lex Mercatoria to Commercial Law,
[13] Cf the contributions in J.D.R. CRAIG and S.M. LYNK, Globalization and
the Future of Labour Law,
[14] See F. LATTY, La “Lex Sportiva”: Recherche sur le Droit
Transnational,
[15] See, for this term, A.-M. SLAUGHTER, “International Law in a World of Liberal States”, European Journal of International Law, 1995, pp. 503-538, at p. 518.
[16] See F. CAFAGGI, Reframing Self-Regulation in European Private Law, The Hague, Kluwer Law International, 2006; D. SCHIEK, “Private Rule-Making and European Governance: Issues of Legitimacy”, European Law Review, 2007, pp. 443-466.
[17] G. DE BURCA, “Developing
Democracy Beyond the State”,
[18] Cf G.
TEUBNER, “Breaking Frames”, o.c.,
p. 157.
[19] J. DELBRüCK, “Exercising Public Authority
Beyond the State: Transnational Democracy and/or Alternative Legitimation
Strategies?”,
[20] G. DE BURCA, “Developing Democracy”, o.c., p. 117.
[21] G. DE BURCA, “Developing Democracy”, o.c., p. 113.
[22] See also J. WEILER, quoted by DE BURCA, “Developing Democracy”, o.c., p. 105: “what is required is […] a rethinking of the very building blocks of democracy to see how these may or may not be employed in an international system which is neither state nor nation”; reference is sometimes made to the need for a “cosmopolitan democratic theory”.
[23] See R. DAHL, “Can International Organizations be Democratic: A Skeptic’s View?”, in I. SHAPIRO and C. HACKER-CORDON, Democracy’s
Edges, Cambridge, Cambridge
University Press 1999, pp. 19-36; R.
DAHL, On Democracy, New Haven
& London, Yale University Press, 1998.
[24] See also, for this debate, MICHAELS and JANSEN, o.c., p. 879; criticised by F. RöDL, “Private Law Beyond the Democratic Order? On the Legitimatory Problem of Private Law ‘Beyond the State’”, American Journal of Comparative Law, 2008, pp. 743-767, at p. 751.
[25] J. DUNN, Democracy: A History,
[26] See J. HABERMAS, “The Postnational
Constellation and the Future of Democracy”, in J. HABERMAS, The Postnational
Constellation: Political Essays,
[27] A. PELINKA, “Democracy Beyond the State: On the (Im-)Possibilities of Transnational Democracy, Trans: Internet-Zeitschrift für Kulturwissenschaften, No 15/2003.
[28] E.L. RUBIN, “Getting Past Democracy”,
[29] Cf J.
DELBRUCK, “Exercising Public Authority Beyond the State: Transnational
Democracy and/or Alternative Legitimation Strategies”,
[30] Cf W.R.
SCOTT, Institutions and Organisations,
Thousand Oaks, Sage, 2nd ed., 2001: “a generalised perception or assumption
that the actions of an entity are desirable, proper, or appropriate within some
socially constructed system of norms, values, beliefs, and definitions”; see also
J. BLACK, “Constructing and
Contesting Legitimacy and Accountability in Polycentric Regulatory Regimes”, LSE Legal Studies Working Paper, No
2/2008.
[31] In the definition of SCOTT, Institutions and Organisations, o.c., it is only the perception of the governed that is important.
[32] Cf B. KINGSBURY et al., “The Emergence of Global Administrative Law”, Law and Contemporary Problems, 2005, pp. 15-61.
[33] Cf DELBRüCK, o.c., p. 38:
“functional authorities of varying geographical scope run by individuals
selected by lot from among those with a material interest in the issue in
question”; see also G. DE BURCA,
“Developing Democracy”, o.c., p. 123;
P. HIRST, Associative Democracy: New Forms of Economic and Social Governance,
Amherst, University of Massachusetts Press, 1994, p. 19: affairs of society
should as much as possible be managed by voluntary and democratically
self-governing associations as these have more information than central
bureaucracies.
[34] Cf. A. SCHEDLER, “Conceptualizing Accountability”, in A.
SCHEDLER et al., The
Self-Restraining State: Power and Accountability in New Democracies,
[35] See e.g. the overview, with many references, by G. GARN, “Moving from Bureaucratic to Market Accountability: The Problem of Imperfect Information”, Educational Administration Quarterly, 2001, pp. 571-599, at p. 578.
[36] This is the point made by M. FENSTER, “The Opacity of Transparency”, Iowa Law Review, 2006, pp. 885-949, at p. 889.
[37] See
for all these aspects M. FENSTER, o.c., pp. 895-ff., with reference to
James Madison’s statement that “a popular government, without popular
information, or the means of acquiring it, is but a prologue to a farce or a tragedy;
or perhaps both”.
[38]
Deliberative democracy emphasises the importance of a free, rational, debate
among citizens, however difficult this may be in practice. The obvious
references are to J. RAWLS, Political Liberalism,
[39] G. DE BURCA, “Developing Democracy”, o.c., p. 107, claims that we need to have “the fullest possible participation and representation of those affected”.
[40] See A. HéRITIER,
“Elements of democratic legitimation in
[41] See e.g. F. FISCHER, Technocracy and
the Politics of Expertise,
[42] G. DE BURCA, “Developing Democracy”, o.c., p. 122.
[43]
There is no need to refer to the extensive literature on public choice. Instead
of all, see D.A. FARBER and P.P. FRICKEY, Law and Public Choice: A Critical Introduction,
[44]
Democratically made deficient legislation can lead to people questioning the
usefulness of democracy as a whole. See J.
GOLDRING, “Consumer Protection, the Nation-State, Law, Globalization, and
Democracy”, Journal of Computer-Mediated
Communication , 1996, No 2.
[45] One other way of enhancing accountability is to label and rate
types of self-regulation or even of contracts: see OMRI BEN-SHAHAR, “The Myth of the ‘
[46] C. TIEBOUT, “A Pure Theory of Local Expenditures”, Journal of Political Economy, 1956, pp. 416-424. See also A. OGUS, “Competition between National Legal Systems: A Contribution of Economic Analysis to Comparative Law”, International and Comparative Law Quarterly, 1999, pp. 405-418.
[47] See in more detail, also on the question of ‘voice’ and ‘exit’, J.M. SMITS, “European Private Law and Democracy”, 2008, o.c., pp. 49-ff.
[48] Thus HADFIELD and TALLEY, “On Public versus Private Provision of Corporate Law”, Journal of Law, Economics and Organization, 2006, pp. 414-441, at p. 415.
[49] Cf HADFIELD and TALLEY, o.c., p. 415.
[50] Cf A.
FISCHER-LESCANO and G. TEUBNER, “Regime-Collisions: The
Vain Search for Legal Unity in the Fragmentation of Global Law”,
[51] Cf S.
TARROW, “Building a Composite Polity: Popular Contention in the European
Union”, Institute for European Studies
Working Paper, No 3/98; A. HéRITIER, o.c., p. 276.
[52] European Commission, Communication on European Contract Law and
the Revision of the Acquis: The Way Forward, COM (2004) 651 final, Official Journal, 2005, C 14/6, p. 14.
[53] Section III.
[54] See
also P.A.J. VAN DEN BERG, The Politics of European Codification,
[55] See, for more details, M.W. HESSELINK, “The Ideal of Codification and the Dynamics of Europeanization: The Dutch Experience”, in The Harmonisation of European Contract Law, o.c., pp. 39-ff.
[56] This was a question that had in fact to be answered by Dutch parliament.
[57] This can be argued for from different theoretical perspectives. See,
e.g., E.J. WEINRIB, The Idea of
Private Law, Cambridge, Harvard University Press, 1995; R. DWORKIN, Law’s Empire,
[58] Cf B.Z.
TAMANAHA, Law as a Means to an End,
[59] See,
e.g., WEINRIB, The Idea of Private
Law, o.c.; see, for a general
framework, N. JANSEN, “The Authority
of the DCFR”, W. MICKLITZ and F. CAFAGGI, After the Common Frame of
Reference: What Future for European Private Law?, 2009.
[60] This
is not to deny there are differences between civil law and common law, though
not as profound as suggested by, e.g.,
E.L. GLAESER and A. SHLEIFER, “Legal Origins”, Quarterly Journal of Economics, 2001,
pp. 1193-1229.
[61] Cf F.A.
HAYEK, Law, Legislation and
[62] Cf STUDY
GROUP ON SOCIAL JUSTICE IN EUROPEAN PRIVATE LAW, o.c., pp. 653-ff.
[63] A.
KRONMAN,
“Contract Law and Distributive Justice”, Yale
Law Journal, 1980, pp. 472-511.
[64] Cf WEINRIB, The Idea of Private Law, o.c.,
pp. 211-ff.
[65] C. FRIED, Contract as Promise: A Theory of Contractual Obligation,
[66] N. GAROUPA and A. OGUS, “A
Strategic Interpretation of Legal Transplants”, Journal of Legal Studies, 2006, pp. 339-363, at pp. 341-342.
[67] See DELBRüCK, o.c., p. 40.