Democracy and (European) Private Law: A Functional Approach

Abstract

The development towards a European private law (and in particular the drafting of the Draft Common Frame of Reference) presents a major challenge to our traditional understanding of how rules of private law should come into being. In the European member states, private law is traditionally 'made' in close cooperation between the national legislatures and the courts: it is the result of an intricate decision-making process at the national level, in which legal academia is often also involved. This contribution argues that it would be wrong to adopt a traditional view of 'democracy' in making European private law. Present Europeanisation (and globalisation generally) should radically change our view of how rules, either existing or new ones, in the area of private law are legitimised. The concept of democracy is therefore deconstructed into various building blocks. If we are able to define the functions of democracy, it is possible to establish whether these functions can also be fulfilled in another way in the area of European (or global) lawmaking.