Edited by Hans-W. Micklitz and Fabrizio Cafaggi
Chapter 7: A Spontaneous Order for Europe? Why Hayek’s Libertarianism is not the Right Way Forward for European Private Law
7. A spontaneous order for Europe? Why Hayek’s libertarianism is not the right way forward for European private law Martijn W. Hesselink 1. INTRODUCTION With the recent publication of the draft Common Frame of Reference,1 the process of revising the Consumer Acquis under way,2 and the idea of an optional European code of contract law under consideration,3 today the Europeanisation of private law is at a defining stage where crucial choices will have to be made. Some of the main issues include regulatory legitimacy (who should bring about the revised acquis, the CFR and any optional code of contract law: scholars, courts, or parliament?), the level and scope of mandatory rules for the protection of weaker parties such as consumers and SMEs, 1 Von Bar et al. (eds.), Principles, Definitions and Model Rules of European Private Law; Draft Common Frame of Reference (DCFR) Interim Outline Edition (Munich: Sellier, 2008). 2 Green Paper on the Review of the Consumer Acquis, Brussels, 8 Feb. 2007, COM(2007)744. 3 See A More Coherent European Contract Law, an Action Plan, Brussels, 12 Feb. 2003, COM(2003)68 final. See also: European Contract Law and the Revision of the Acquis: the Way Forward, 11 Oct. 2004, COM(2004)651 final. Today, the idea of an optional code of contracts seems to be lower on the political agenda than it was in 2003 when the Commission launched its ambitious Action Plan (see the First Annual Progress Report on The Common Frame of...
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