Pluralism in European Private Law

Abstract

Abstract This chapter examines the further contours of an instrumental-normative approach, focusing on how the question ‘who does what, and at what level of regulation’ is answered by existing theories of legal pluralism in European private law. It has been said that most theories of legal pluralism in European private law, even if they proclaim to adopt a strong legal pluralist perspective, still fall back on an ordering of some sort. The chapter tests this assumption by analysing how the market rationality of EU law interacts with the juridical rationality of national private laws in relation to three aspects of lawmaking: actors, norms, and processes. It concludes that many theories of legal pluralism in European private law lean towards an ordering of some kind. Yet, at the same time the chapter reveals several instances in which inroads are made on the ordered conception of legal pluralism, which could provide the premises for the further development of a strong legal pluralist theory for European private law.