Jaap Hage, ‘On Which Level Should Private Law in Europe Be Created?’

In this paper an attempt is made to answer the question what is the proper level of regulation for private law in Europe. It starts with a methodological section that explains how this question can be made tractable by considering only three plausible alternative levels: those of the EU, national states and private agents and choosing the best of these three. Then Utilitarianism is proposed as the ultimate standard to deal with evaluative questions. In this connection Utilitarianism is briefly explained.

The paper considers two main kinds of arguments why a particular level of regulation should be adopted. One kind concerns the quality of the rules, and in this connection the expertise of the rule-makes, the avoidance of externalities, the role of coherence, and the scope of application of the rules are taken into consideration. It depends on the circumstances of the case what is the best level of regulation, and more often than not the relevant data are not yet available. However, the paper indicates what kinds of data would be necessary in case utilitarianism is adopted as the ultimate standard.

The second kind of argument considers autonomy as a reason why rules should be made by those to which the rules will be applicable. It is argued that autonomy may be relevant, but in the light of the choice for Utilitarianism only if the exercise of autonomy leads to more happiness, which is not necessarily always the case.

The choice for a particular level of regulation should not be made in abstraction from the actual situation. Therefore it is proposed to replace the question what the best level of regulation is by the question what is the best transition from the actual situation to a better situation.

After an intermediate summary, the paper is concluded by a comparison of its findings with the results of a paper by Jan Smits that addresses more or less the same questions.

Hage, Jaap, On Which Level Should Private Law in Europe Be Created? (February 25, 2014). Maastricht European Private Law Institute Working Paper No. 2014/8.

First posted 2014-02-27 07:07:18

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