My article takes stock of legal pluralist thinking in European private law. It starts from Ralf Michaels’ finding that European private law reflects a preference for ‘ordered pluralism’. That term, read against the background of broader debates on legal pluralism in EU law, characterises the field as ‘pluralist’ rather than ‘monist’, thereby recognising that multiple sources of rules may co-exist. Yet, it also supposes an ordering mechanism between these sources, often based on State law, and is therefore not a ‘radical’ or ‘strong’ legal pluralism. For example, ordered pluralism recognises that, in the platform economy, the primary position of monist (State-based legal systems as promulgators of rules) has gradually been supplanted in EU law discourse by a pluralist perspective (multiple legal systems and legal sources co-exist within and beyond the Member States). The article posits that ‘strong’ legal pluralism would from a normative perspective be preferable to this ‘weak’ or ‘ordered’ pluralist approach, as it provides a framework that gives space to public autonomy. Debates on law making in European private law however have not fully come to grasp with these perspectives on legal pluralism. The question arises: is it possible to develop a theory of strong legal pluralism in European private law that takes account of formal as well as private lawmaking, or are we bound to fall back on a European preference for ordering?
To answer this question, the article assesses some of the leading theories of legal pluralism in European private law. It analyses how ‘ordered’ existing theories of pluralism in European private law are by considering what space they give to deliberation between lawmakers at different levels of regulation.
Various aspects considered, Michael’s observation that many theories of legal pluralism in European private law are not theories of strong legal pluralism, but of ordered legal pluralism, seems to hold up. Although nuances can be discerned, the existing theories largely confirm that EU law’s internal market rationality stands apart from, and can override the juridical rationality of national private law systems. In relation to justice, the pursuit of access justice through EU law can result in rules that are aimed at empowering consumers and businesses to pass the threshold for taking part in the internal market, without having specific regard to questions of social justice. As a corollary, however, social justice can be a factor in determining the substance of rules, for instance of fairness in consumer transactions. The European Court of Justice’s case law on the ex officio assessment of unfair terms in consumer contracts can serve as an example. The analysis of the second dichotomy, between doctrinal and pragmatic approaches, shows that pragmatic rules aimed for example at consumer protection can cut across the doctrinal approaches of national private law systems. Nonetheless, doctrinal systems can be resistant to changes that would increase the complexity of the law, such as the introduction of specific rules for small- and medium-sized enterprises, with tend to fall in the gap between the ‘business’ and ‘consumer’ categories of private law. For the third dichotomy, between formal and private regulation, existing theories have not come up with a conclusive answer on how to construe the role of private actors as lawmakers in a true legal pluralist manner. The rules created by private actors ultimately require the assumption of rules into formal law.
At the same time, the analysis reveals several instances in which inroads are made on the ‘ordered’ conception of legal pluralism. It may be that these provide the premises for the development of a strong legal pluralist theory for European private law after all. The primary observation that I make is that each of the existing theories in some way confirms that the conception of ‘who makes law’ is in flux. The rise of private actors as lawmakers has been noted and has, for example for Jan Smits, been a ground for developing a bottom-up perspective on law making. Further, the emergence of ‘prosumers’ - i.e. non-professional traders offering goods and services on consumer markets or ‘consumers acting as producers’ - as a potential new category of legal subjects, but also as lawmakers, raises new doctrinal questions. Should they be treated as businesses, with all obligations towards consumers associated to that category, or should private laws develop rules tailored to this new, in-between category of trader? Hans Micklitz’s project on European Regulatory Private Law (ERPL), finally, has paid particular attention to the emergence of standardisation and co-regulation in law making processes.
Taking stock, therefore, the analysis of law making in European private law reveals a field that has matured, but that is now at the threshold of a re-evaluation and perhaps a new transformation in law making. The increasing importance of private regulation combined with sensitivity to social justice issues almost inevitably leads to the question: which mechanisms can be maintained or created for ensuring that the values and objectives of EU law and of national private laws are safeguarded? That question goes beyond the frameworks provided by existing theories of ordered legal pluralism. It demands a new attempt at the development of a strong legal pluralist theory for European private law. The article hopes, through its review of the openings left by existing theories, to be a step in that direction.