Jan Smits, ‘A Radical View of Legal Pluralism’

Law is increasingly pluralist, meaning that different claims to legal authority exist at the same time on the same territory. This pluralism raises important questions in the field of (European) private law. The main question discussed in this contribution is a normative one: to what extent can legal pluralism be accepted, or should it even be encouraged? The answer provided entails a radical view of legal pluralism in European private law. This view is based on the idea that people are never necessarily governed by the law of one State or by the norms of one societal group, but are instead allowed to opt out of their ‘own’ set of norms. This puts legal pluralism in a different perspective. While an argument often used against pluralism is that it may endanger the interests of a party being trapped in its own community, the view laid down in this paper avoids this problem: it allows a party to opt out of one community and opt in to another one. The limits of this enhanced principle of party autonomy are found in public policy as understood in the field of private international law.

Smits, Jan M., A Radical View of Legal Pluralism (January 12, 2012). PLURALISM AND EUROPEAN LAW, Leone Niglia, ed., Oxford, 2012; Maastricht European Private Law Institute Working Paper No. 2012/1 .

First posted 2012-01-14 10:39:32

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