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Smits, Jan --- "Democracy and (European) Private Law: A Functional Approach" [2010] ELECD 287; in Faure, Michael; van der Walt, André (eds), "Globalization and Private Law" (Edward Elgar Publishing, 2010)

Book Title: Globalization and Private Law

Editor(s): Faure, Michael; van der Walt, André

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848447608

Section: Chapter 1

Section Title: Democracy and (European) Private Law: A Functional Approach

Author(s): Smits, Jan

Number of pages: 17

Extract:

1. Democracy and (European) private
law: a functional approach
Jan Smits*

1 INTRODUCTION
The development towards a Common Frame of Reference for European
private law1 not only raises questions about what should be the contents of
private law rules for the European Union,2 but also challenges 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 cooper-
ation between the national legislatures and the courts: it is the result of an intri-
cate decision-making process at the national level (in which legal academia is
often also involved3). This is, to varying degrees, true for both civil law and
common law jurisdictions.
The drafting of the Common Frame of Reference and of other forms of
non-State law prompts the question of to what extent these instruments should
meet similar requirements as to legitimacy as the national rules in the Member
States. The prevailing view seems to be that the rules of the Draft CFR
(DCFR) do not meet the requirements of democratic legitimacy necessary in
the field of private law. Given that the DCFR was drafted by legal scholars,
united in the Study Group on a European Civil Code and in the Research


* Jan Smits is professor of European Private Law and Comparative Law at
Tilburg University, The Netherlands (Tilburg Institute of Comparative and
Transnational Law) and visiting professor of Comparative Legal Studies at the
University of Helsinki, Finland (Center of Excellence on ...