Hanoch Dagan, ‘Between Regulatory and Autonomy-Based Private Law’

The European Regulatory Private Law (ERPL) Project offers a provocative and exciting perspective on private law, which upsets conventional wisdoms and challenges us to rethink some of the most fundamental premises of our understanding of private law. This Essay addresses three core pillars of the ERPL Project: its reliance on the notion of regulated autonomy, its endorsement of access justice, and its critique of the public/private distinction. The Essay exposes some ambiguity in each of these pillars and offers some friendly refinements to the Project’s conception of EU private law.

I embrace the ERPL Project’s critique of the traditional understanding of private law as the bastion of independence and of formal equality; and yet I argue against erasing the public/private distinction, and with it, the idea of private law. As the law of our interpersonal relationships as free and equal persons – as opposed to our interactions as patients of the welfare state or as citizens of a democracy – private law can offer a distinctive and valuable source of normativity, which is particularly important in our transnational private relationships where there is no common loyalty to a public (state) actor. Since the conventional, private law libertarian, conception of the laws of property, contracts, torts, and unjust enrichment cannot plausibly play this role, it should be supplanted by its liberal counterpart, which is founded on the commitment to individual autonomy as self-determination (rather than independence) and thus to substantive (not formal) equality.

The two other interventions of this Essay follow from this main point. Thus, I encourage the ERPL Project to unpack its notion of regulated autonomy, which currently conflates two different features of the term. The prescription of extending autonomy by, for example, non-discrimination rules that ensure inclusion, is a straightforward implication of the underlying normative commitments of private law, properly understood. But the interpretation of regulated autonomy as commandeering individual interactions to collective purposes is quite different: while in principle, a liberal private law, which must be attuned to these collective obligations, can accommodate such regulatory purposes, it should do so cautiously given their possible ramifications on both individuals and their private relationships.

Similarly, this Essay offers an autonomy-based foundation to the notion of access justice, which the Project identifies as the underlying theme of ERPL. Access justice, to be sure, serves also public, regulatory concerns. But it need not, indeed should not, rely solely on these concerns. Reciprocal respect to our right to autonomy as self-determination (as opposed to the impoverished sense of independence) entails a duty of relational justice, which provides a non-statist foundation for the prescriptions of non-discrimination and accommodation. This means that setting aside access barriers (especially barriers that exclude weaker people) should be interpreted as an implementation of this duty, which perfects private law, rather than undermines its premises.

Dagan, Hanoch, Between Regulatory and Autonomy-Based Private Law (November 16, 2015).

First posted 2015-11-18 19:26:14

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