Chantal Mak, ‘Justice Through European Private Law’

To what extent should judges in civil cases take into account moral views in their adjudication of a case? The answer to this question depends on the way in which the relationship between law and morality is conceived of: If law is seen as a branch of political morality, judges should already take into consideration moral views when defining the legal question that is at stake in a case. If, on the other hand, law and morality are understood as related, but not completely overlapping, then societal moral views will be of lesser significance in deciding the legal question at issue. On the basis of examples taken from different European countries (the Netherlands, England, Spain) and the case law of the Court of Justice of the European Union, this text explores ideas of law, morality and justice that find expression in judgments in civil cases in the EU. It is submitted that, while judges should in principle not interfere with questions of personal morality, they may be required to acknowledge the implications of a society’s political morality for a specific private legal dispute.

Mak, Chantal, Justice Through European Private Law (February 25, 2016). Amsterdam Law School Research Paper No 2016-14; Centre for the Study of European Contract Law Working Paper Series No 2016-04.

First posted 2016-03-09 14:39:49

Leave a Reply