The Way Forward
Edited by Michael Faure and André van der Walt
Chapter 1: Democracy and (European) Private Law: A Functional Approach
Jan Smits* 1 INTRODUCTION The development towards a Common Frame of Reference for European private law1 not only raises questions about what should be the contents of private law rules for the European Union,2 but 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 involved3). This is, to varying degrees, true for both civil law and common law jurisdictions. The drafting of the Common Frame of Reference and of other forms of non-State law prompts the question of to what extent these instruments 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 * Jan Smits is professor of European Private Law and Comparative Law at Tilburg University, The Netherlands (Tilburg Institute of Comparative and Transnational Law) and visiting professor of Comparative Legal Studies at the University of Helsinki, Finland (Center of Excellence on European Law and Polity). This chapter expands on ideas raised in Smits (2008,...
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