pluralism and european private law

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Pluralism And European Private Law

Author : Leone Niglia
ISBN : 9781782250647
Genre : Law
File Size : 55. 83 MB
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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.

The Struggle For European Private Law

Author : Leone Niglia
ISBN : 9781782253112
Genre : Law
File Size : 54. 27 MB
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The European codification project has rapidly gathered pace since the turn of the century. This monograph considers the codification project in light of a series of broader analytical frameworks Â? comparative, historical and constitutional Â? which make modern codification phenomena intelligible. This new reading across fields renders the European codification project (currently being promoted through the Common Frame of Reference and the Optional Sales Law Code proposal) vulnerable to constitutionally-grounded criticism, traceable to normative considerations of private law authority and legitimacy. Arguing that modern codification phenomena are more complex than positivist, socio-legal and historical approaches have suggested over the past two centuries, the book stages a pathbreaking method of analysis of the law-discourse (nomos-centred) which questions at once the reduction of private law to legislation and of law to power and, on this basis, redefines the ways in which to counter law's disintegration and crisis in the context of Europeanisation. Professor Niglia reconstructs the European codification project as a complex structure of government-in-the-making that embodies a set of contingent world views, excludes alternatives, challenges the plurality of private laws and entrenches conflicts that pertain not only to form (codification, de-codification, recodification) but also to dilemmas implicated in determining the substantive orientation of European private law. The book investigates the position of the codifiers and their discontents in the shadow of the codification strategy pursued by the European Commission Â? noting a new turn in the struggle over the configuration of private law which has taken place since the Savigny-Thibaut dispute of 1814 which this book critically revisits exactly two centuries later. This monograph is particularly aimed at readers interested in exploring the complexities, and interconnections, of the supposedly separate realms of comparative law, European law, private law, legal history, constitutional law, sociology of law and, last but not least, legal theory and jurisprudence.

The Politics Of Justice In European Private Law

Author : Hans-W Micklitz
ISBN : 9781108335829
Genre : Law
File Size : 21. 62 MB
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The Politics of Justice in European Private Law intends to highlight the differences between the Member States' concepts of social justice, which have developed historically, and the distinct European concept of access justice. Contrary to the emerging critique of Europe's justice deficit in the aftermath of the Euro crisis, this book argues that beneath the larger picture of the Monetary Union, a more positive and more promising European concept of justice is developing. European access justice is thinner than national social justice, but access justice represents a distinct conception of justice nevertheless. Member States or nation states remain free to complement European access justice and bring to bear their own pattern of social justice.

Constitutionalization Of European Private Law

Author : Hans Micklitz
ISBN : 9780191020087
Genre : Law
File Size : 45. 78 MB
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In recent years the impact of human rights and fundamental rights on private law has risen in prominence and led to a whole series of detailed investigations. 'Constitutionalization of private law' is the flag under which most of the research on the increasing impact of national constitutional rights on national private legal orders is sailing. In the absence of a European Constitution, the constitutionalization of European private law suggests a process: constitutionalization instead of constituent power, demos, and the magic constitutional moment. The Charter of Fundamental Rights and the European Convention of Human Rights constitute the two pillars on which the transformation of European private law rests. This volume clearly demonstrates the change that has taken place, at the national and at the European level. Private law is no longer immune to the intrusion of fundamental and human rights. Whilst member states and the EU are driving the process by adopting ever more concrete and more comprehensive lists of human and fundamental rights, at the national, the European, and international level with overlapping contents, the true and key players in this development are the national and European courts. Contributions to this volume give this process a face and a direction, which is highlighted in the introduction by Hans-W. Micklitz.

Development Of European Private Law

Author : Esther Van Schagen
ISBN : 1780683677
Genre :
File Size : 29. 14 MB
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Using insights from multilevel governance and pluralism, this book provides an in-depth analysis of the development of European private law in the Dutch and German legal order. The book focuses on the question whether the coexistence of national and European state and non-state actors is detrimental or beneficial for the predictability, consistency, accessibility and responsiveness of European private law. On the one hand, the discourse on multilevel governance draws attention to the possibility that problems may arise if interdependent actors do not sufficiently interact. This may be the case in European private law, where national and European legislators and courts have become increasingly interdependent on one another in ensuring that European private law develops predictably, consistently, accessibly, and responsively. The book analyzes the development of European private law by national and European state actors through codifications, blanket clauses, soft laws and general principles in the light of interdependence. In addition, non-state actors have played an increasingly important role in developing binding rules in European private law. This development necessitates more interaction between actors, and more attention for the potentially binding effect of privately developed rules on third parties' rights. The book accordingly develops a normative framework to determine the extent to which private actors should be able to develop binding rules, based on principles of democracy, private autonomy, and concerns for hetero-determination. On the other hand, pluralism perspectives advocate the development of European private law at different levels and jurisdictions in the light of responsiveness, regulatory competition, and opportunities for mutual learning. The book explores whether these benefits have materialized in the development of European private law, drawing attention to failed and successful instances of regulatory competition and mutual learning, and resulting innovations. The book sketches new governance techniques that may help interdependent actors take into account one another's initiatives and benefit from each other's insights, although they may also entail hetero-determination. (Series: Ius Commune Europaeum, Vol. 144) [Subject: European Law, Private Law]~

Families And The European Union

Author : Clare McGlynn
ISBN : 9781139457378
Genre : Law
File Size : 79. 42 MB
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In the first book to offer a comprehensive analysis of family law in the European Union, McGlynn argues that a traditional concept of 'family' which has many adverse effects - on individuals, on families (in all their diverse forms), and indeed on the economic ambitions of the EU is forming the basis for the little-recognised and under-researched field of EU family law. This book examines three different aspects of family life - childhood, parenthood and partnerships - and critically analyses existing EU law in relation to each. It examines the emerging field of EU family law, providing a highly sceptical account of recent developments and a robust challenge to the arguments in favour of the codification of European civil law, including family law.

The Emergence Of Eu Contract Law

Author : Lucinda Miller
ISBN : 9780199606627
Genre : Law
File Size : 55. 21 MB
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The emergence of an EU contract law is one of the most significant legal developments in Europe today. Exploring the origins and evolution of the discipline, from the Sales Directive to the Common Frame of Reference, the book advances a framework for the further harmonization of contract law that embraces diversity and pluralism.

Pluralism In International Criminal Law

Author : Elies van Sliedregt
ISBN : 9780191008290
Genre : Law
File Size : 26. 75 MB
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Despite the growth in international criminal courts and tribunals, the majority of cases concerning international criminal law are prosecuted at the domestic level. This means that both international and domestic courts have to contend with a plethora of relevant, but often contradictory, judgments by international institutions and by other domestic courts. This book provides a detailed investigation into the impact this pluralism has had on international criminal law and procedure, and examines the key problems which arise from it. The work identifies the various interpretations of the concept of pluralism and discusses how it manifests in a broad range of aspects of international criminal law and practice. These include substantive jurisdiction, the definition of crimes, modes of individual criminal responsibility for international crimes, sentencing, fair trial rights, law of evidence, truth-finding, and challenges faced by both international and domestic courts in gathering, testing and evaluating evidence. Authored by leading practitioners and academics in the field, the book employs pluralism as a methodological tool to advance the debate beyond the classic view of 'legal pluralism' leading to a problematic fragmentation of the international legal order. It argues instead that pluralism is a fundamental and indispensable feature of international criminal law which permeates it on several levels: through multiple legal regimes and enforcement fora, diversified sources and interpretations of concepts, and numerous identities underpinning the law and practice. The book addresses the virtues and dangers of pluralism, reflecting on the need for, and prospects of, harmonization of international criminal law around a common grammar. It ultimately brings together the theories of legal pluralism, the comparative law discourse on legal transplants, harmonization, and convergence, and the international legal debate on fragmentation to show where pluralism and divergence will need to be accepted as regular, and even beneficial, features of international criminal justice.

The New European Private Law Vol 3 Essays On The Future Of Private Law In Europe

Author : Martijn Hesselink
ISBN : 9789041119629
Genre : Law
File Size : 32. 4 MB
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In The New European Private Law, Martijn W. Hesselink presents a revised and supplemented collection of essays written over the last five years on European private law. He argues that the creation of a common private law in Europe is not merely a matter of rediscovering the old ius commune or of neutrally establishing the present 'common core' which may be codified in a European Civil Code. Rather, it is a matter of making choices, some of which may be highly controversial. In this book he discusses some of the most important choices which will have to be made with regard to culture, principles, politics, models, rights, concepts and structure in the new European private law.

The Eu S Role In Global Governance

Author : Bart Van Vooren
ISBN : 9780191634734
Genre : Law
File Size : 82. 60 MB
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For years the European Union has been looked on as a potential model for cosmopolitan governance, and enjoyed considerable influence on the global stage. The EU has a uniquely strong and legally binding mission statement to pursue international relations on a multilateral basis, founded on the progressive development of international law. The political vision was for the EU to export its values of the rule of law and sophisticated governance mechanisms to the international sphere. Globalization and the financial crisis have starkly illustrated the limits of this vision, and the EU's dependence on global forces partially beyond the control of traditional provinces of law. This book takes stock of the EU's role in global governance. It asks: to what extent can and does the EU shape and influence the on-going re-ordering of legal processes, principles, and institutions of global governance, in line with its optimistic mission statement? With this ambitious remit it covers the legal-institutional and substantive aspects of global security, trade, environmental, financial, and social governance. Across these topics 23 contributors have taken the central question of the extent of the EU's influence on global governance, providing a broad view across the key areas as well as a detailed analysis of each. Through comparison and direct engagement with each other, the different chapters provide a distinctive contribution to legal scholarship on global governance, from a European perspective.

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