Jan M Smits

A Radical View of Legal Pluralism

Jan M. Smits — Sat, 14 Jan 2012 03:15:29 PST

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.

A Dialogue on Comparative Functionalism

Jan M. Smits et al. — Wed, 30 Nov 2011 07:53:38 PST

The use of the functional method when comparing legal systems remains debated, even to such an extent that some authors have discarded functionalism as a fruitful method. The two authors of this paper ask what we can still expect from functionalism. While Husa presents an argument in favor of rule-of-thumb functionalism, Smits claims that functionalism has a bright future if it is reshaped. The authors present their arguments by way of a dialogue that was written for the ‘Legal debates’-section of the Maastricht Journal of European and Comparative Law.

Does Law Matter? An Introduction

Jan M. Smits et al. — Sat, 29 Oct 2011 02:58:31 PDT

This contribution addresses the importance of institutions for economic development and in particular the role of law for economic growth. It was written as the introduction to an edited volume that critically considers the so-called legal origins-thesis. This thesis claims that the economic performance of a country is largely the result of that country’s legal system and in particular of how this legal system has come about. Economic indicators would show that in particular common law countries are better suited to meet the interests of business than civil law countries. This volume takes stock of the debate by offering a mufti-disciplinary approach to the relationship between legal rules and economic growth. It contains a general part with theoretical, empirical, historical and economic analysis of the legal origins-claim, a part on differences among various jurisdictions (including China) and a part on specific fields of law (including discussion of corporate law, property law and environmental law).

Is Law a Parasite? An Evolutionary Explanation of Differences Among Legal Traditions

Jan M. Smits — Sun, 11 Sep 2011 04:20:32 PDT

One of the most salient characteristics of law is that it can be seen as a tradition: law is passed on from one generation to another and, even though profound changes in the law may occur over time, its development is usually seen as a continuous one. Thus, in The Common Law, Oliver Wendell Holmes states that ‘the law embodies the story of a nation’s development through many centuries (...).’ Alan Watson also emphasizes the extraordinary persistence of rules by noting that similar rules have been transplanted from one society to another. This paper seeks to explain differences among legal traditions by applying a specific evolutionary framework. This framework is based on ‘symbiosism’, a Darwinian theory developed by linguists to explain the origins and development of language. The basis for this theory is that language is an organism residing in the human brain and therefore a memetic life form. In this respect, interesting parallels can be drawn between language and law. This theory can be used to help explain differences among jurisdictions, in particular why it is that these differences continue to exist over time.

The Law of Contract: An Introduction

Jan M. Smits — Tue, 06 Sep 2011 09:15:19 PDT

The Maastricht European Law School offers a full programme designed to educate European lawyers. This poses a special challenge in terms of methods of teaching and development of teaching materials. This is in particular the case in the first year of study, in which students are introduced to the traditional fields of law (such as private law, criminal law and constitutional law) without focusing on one national jurisdiction: it is not Dutch, French, German or English law that is taught, but law as such. The present chapter is an attempt to provide first year students with such a ‘European’ introduction to the law of contract. It is used as part of the teaching materials in the first course of the Maastricht curriculum (Introduction to Law).

The chapter may also be useful for non-lawyers interested in the law of contract. It provides a brief account of how contracts come into being, how to establish their contents and what are the rights and obligations of the contracting parties.

Kodifikation ohne Demokratie? Zur Legitimität eines europäischen (optionalen) Zivilgesetzbuches

Jan M. Smits — Mon, 22 Aug 2011 04:01:59 PDT

Im Rahmen der anhaltenden Debatte über die Europäisierung des Privatrechts nehmen die Bedenken bezüglich der Legitimität von einigen Kommissionsinitiativen zu. Die wichtigste dieser Initiativen mündete im kürzlich veröffentlichten Entwurf eines Gemeinsamen Referenzrahmens des Europäischen Privatrechts (Draft Common Frame of Reference of European Private Law, DCFR). In ihrem Grünbuch zum Europäischen Vertragsrecht aus dem Jahre 2010 wirft die Kommission die Frage auf, wie der akademische DCFR zu einem „politischen“ europäischen „Vertragsrechtsinstrument“ umgewandelt werden kann, um so den Binnenmarkt weiterzuentwickeln. Sie skizziert darin sieben politische Verwendungsmöglichkeiten des DCFR, zu denen die Einführung eines fakultativen europäischen Vertragsrechtsinstruments (Optionales Instrument), die Verabschiedung einer Richtlinie oder Verordnung zur Einführung eines Europäischen Vertragsrechts und sogar die Einführung eines Europäischen Zivilgesetzbuchs per Verordnung zählen. Obwohl die Wahl der bevorzugten politischen Strategie noch aussteht, macht das Grünbuch doch deutlich, dass die Idee einer europäischen Kodifikation (von Teilen) des Privatrechts noch immer auf der Agenda der Europäischen Kommission steht. Dieser Beitrag soll deshalb die Frage aufwerfen, wie eine solche Kodifikation legitimiert werden könnte.

Plurality of Sources in European Private Law, or: How to Live With Legal Diversity

Jan M. Smits — Thu, 07 Apr 2011 12:18:01 PDT

Private law is no longer primarily governed by rules produced by national legislatures and courts. The emergence of new types of rules, emanating from both international (including European) and private law makers, sits uneasily with traditional theory that is largely based on the monopoly of national states in making law. The main argument of this contribution is that this prompts the need for a fundamental rethinking of our idea of private law sources. After an overview of the multiplication of sources that we have witnessed over the last decades, two questions are discussed. The first is whether we are able to identify a ‘best’ level of regulation for a certain topic. It is proposed that this requires a functional view of the regulation of relationships between private parties: what are actually the functions that private law at the ‘natural’ national level serves and could these functions not be achieved in a better way at another level? The second question is what strategy should be adopted in dealing with a variety of sources out of which private law flows. The proposed strategy is not to eliminate pluralism or to try to create a coherent system out of conflicting sources, but to allow competition between diverging sets of norms with a relatively large role for parties to adopt the set of rules they like best. The necessary counterweight to this enhanced party choice is that its limits should be clearly defined: legislatures should be more explicit about what counts as mandatory law.

Optional Law: A Plea for Multiple Choice in Private Law

Jan M. Smits — Wed, 09 Mar 2011 08:10:54 PST

The recent publication of the Green Paper on European contract law by the European Commission (2010) breathes new life into the old plan to develop an optional contract law for the European Union, based on the Draft Common Frame of Reference of European Private Law (DCFR). This editorial praises this initiative. It is also a plea for the introduction of optional law in many more areas than contract law alone. In the prevailing view, the conduct of private actors (such as citizens and firms) is governed by only one law. A view of optional law defends that these actors should be left with a multiple choice among various jurisdictions. This view is elaborated by giving an overview of existing European optional regimes (including the European Company, EEIG, SCE, Community trademark, European enforcement order, European payment order and European small claims procedure) and by asking what advantages optional law can have at both the European and the national level.

Private Law 2.0: On The Role of Private Actors in a Post-National Society

Jan M. Smits — Sun, 06 Mar 2011 07:20:44 PST

European Legal Education, or: How to Prepare Students for Global Citizenship?

Jan M. Smits — Mon, 06 Dec 2010 02:43:19 PST

Legal education is gradually moving away from the teaching of national law towards a more European, transnational, or even ‘global’ way of teaching. This paper seeks to explain why an international legal education is to be preferred to a national curriculum and what this means for how law is taught and how law schools are ideally organised. The arguments for an international legal education lie in the increasing plurality of legal sources, the desire to attract students from a larger pool, and the need to give students not only a specialised professional training but also to prepare them for global citizenship. It is claimed students should be exposed to alternative ways of achieving justice, thus creating a dialogue with otherness. This can be done by a focus on the arguments behind the choices made by the relevant authorities and not on the doctrinal intricacies of national legal systems.

This type of international curriculum, in which competing conceptions of justice are at the centre of attention, requires a specific teaching method. Two methods seem best suited to allow students to construct their own understanding of legal problems: problem-based learning (PBL) and the Socratic method. In addition, teaching law in an international setting forces us to think through the sequence in which the various jurisdictions come to the fore, the assessment of students and the use of teaching materials and language of instruction. Also discussed are the challenges for the law school as a whole, such as the relationship between teaching and research, the recruitment of faculty and the decreasing relevance of the traditional departmental structure.

The Right to Change Your Mind? Rethinking the Usefulness of Mandatory Rights of Withdrawal in Consumer Contract Law

Jan M. Smits — Mon, 06 Dec 2010 02:36:38 PST

Both in Europe and the United States, withdrawal rights are increasingly part of mandatory legislation to protect consumers. Withdrawal rights allow the consumer to terminate the contract within a set ‘cooling off-period.’ This paper offers a threefold analysis of these rights. First, it makes a comparison between statutory withdrawal rights in Europe and in the United States. Second, it presents the results of a modest survey of the voluntary use of withdrawal rights in general conditions of retailers. Third, it evaluates the usefulness of mandatory withdrawal rights. The paper shows what can be the effect of introducing such mandatory rights on the behaviour of both retailers and consumers. The main reason why a retailer voluntarily grants withdrawal right to a consumer is that it creates trust and thus enhances the willingness of the buyer to purchase products. This trust building process can be undermined if the legislator imposes statutory withdrawal rights, leading to crowding out effects. Finally, the consequences of this finding for the optimal design of withdrawal rights are discussed.

Beyond Euroscepticism: on the Choice of Legal Regimes as Empowerment of Citizens

Jan M. Smits — Sun, 28 Nov 2010 04:31:18 PST

This contribution aims to show that Euroscepticism is based on a particular view of how citizens' interests are represented. This view should be replaced with a different type of thinking about ensuring citizens' participation in the European integration process. In this alternative view, the possibility of citizens choosing legal regimes other than their 'own' (and States being explicit about the limits of exercising such an enhanced party autonomy) is seen as a method of empowering citizens in fields that matter to them the most. Typically, these fields relate to (but are not limited to) what is known as 'private law,' the law that deals with how private parties can shape their own private, professional and business lives.

European Private Law and the Comparative Method

Jan M. Smits — Mon, 19 Apr 2010 09:47:13 PDT

European Private Law has now firmly established itself as a new field of academic study: with its own professorial chairs, academic journals, annual conferences and debate, European private law has turned into a real ‘industry.’ The purpose of this contribution is to examine the relationship between this field and the much older discipline of comparative law. Although it is often assumed that there is a close relationship between the two fields, it is not very clear what this relationship consists of exactly. At first sight, one is inclined to say that comparison among the 28 European jurisdictions is the essential tool for establishing a uniform private law for Europe. However, careful scrutiny of the European legislation in place and of the reasoning of the European Court of Justice may reveal a more nuanced picture. This contribution considers in particular the relationship between a) legal harmonisation and the comparative method in general; b) the role of the comparative method in European legislation; c) the role of the comparative method in the case law of the Court of Justice of the European Union; and d) the role of the comparative method in legal scholarship.It turns out that the relationship between the creation of a common private law for Europe and the comparative method is not as straightforward as is often assumed.

The Complexity of Transnational Law: Coherence and Fragmentation of Private Law

Jan M. Smits — Sat, 30 Jan 2010 05:43:47 PST

It is generally acknowledged that legal rules increasingly flow from different (national, European and supranational) sources. It is equally well established that this multiplication of sources deeply disturbs our idea of law as a coherent and unitary system. The aim of this contribution is to explore this increasing complexity for the field of private law. One aspect of this complexity is an undeniable fragmentation of law. This paper (written as the Netherlands report for the XVIIIth International Congress of Comparative Law 2010) pays special attention to how fragmentation of private law is perceived in the Netherlands and which strategies are adopted to remedy the problems it causes. The approach of the Dutch legislature in dealing with this fragmentation is to try to re-establish a coherent system. This is apparent from both the ways in which European directives are implemented and from the Dutch efforts to deal with the increasing complexity of private international law. European directives are implemented as much as possible inside the Dutch Civil Code in order to keep the private law system intact, even though this cannot take away the causes of increasing incoherence. Also the disperse rules on private international law are structured in a new Book of the Civil Code, even though it is no longer in the power of the national legislature to create a coherent system. This strategy of the Dutch legislature is clearly wrong because it is no longer in the power of a national legislature to create a coherent system through legislation. We should therefore seek new strategies to deal with the various legal regimes that exist on a national territory. The paper explores several of these strategies.

Democracy and (European) Private Law: A Functional Approach

Jan M. Smits — Thu, 21 Jan 2010 06:18:28 PST

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.

不当利得に関するヨーロッパ法？共通参照枠草案における原状快復法の批判的考察

Jan M. Smits — Tue, 17 Nov 2009 09:02:38 PST

This contribution discusses the European principles on unjustified enrichment as recently published in the Draft Common Frame of Reference (2008). These principles (or rather: model rules) were drafted with a view to the improvement and elaboration of the present European acquis in the field of private law. This contribution considers not so much the substantive details of the new model rules, but more the need for and the function of drafting principles in this area of the law. This is a legitimate approach as the law of restitution is traditionally not a core area of European legislative intervention. It is concluded that, in view of the multilevel regulation of European private law, enrichment law is better regulated at the national level than at the European one. This contribution was translated into Japanese by Akimichi Sasakawa and Kazuyki Yoshinaga.

اصول اروپايي حقوق قراردادها و فرايند يكسان سازي حقوقي در اروپا

Jan M. Smits — Fri, 13 Nov 2009 01:45:25 PST

This article offers an overview of the process of harmonisation of private law in the European Union. It was translated into Dari Persian by Amin Armans.

Bezduvodné obohacení v návhru ceského obcanského zákoniku – z evropské perspektivy

Jan M. Smits — Sun, 18 Oct 2009 03:28:18 PDT

Part Four of the draft for a new Czech Civil Code contains several provisions on unjustified enrichment. This contribution discusses these provisions in a comparative perspective and with reference to the Draft Common Frame of Reference for European Private Law. This article was translated into Czech by Lubos Tichy.

私法与基本权利：一种怀疑论的观点

Jan M. Smits — Thu, 20 Aug 2009 04:26:46 PDT

Over the last decade or so, many European countries have seen a growing influence of fundamental rights in contract, tort and property law. This development, sometimes referred to as the 'constitutionalisation' of private law, is often regarded as highly beneficial. It seems after all to be a noble idea to allow fundamental rights to play a role in relationships between private persons. However, the application of universal standards of what is regarded as fair in the relationship between the State and the citizen to private parties can also be looked at with suspicion. The aim of this contribution is to reflect on the desirableness of the constitutionalisation of private law and to show the adverse effects of this development. This article was translated into Chinese by Cheng Xueyang.

法律模式的進口與出口: 荷蘭的經驗

Jan M. Smits — Thu, 20 Aug 2009 04:01:52 PDT

This contribution offers an overview of Dutch efforts in law reform in Central and Eastern Europe. Apart from the overview that is provided, these efforts are critically assessed. It thus tries to provide empirical materials to evaluate theories on legal transplants. This article was translated into Chinese by Leijie Wei.