The power of reasons in European private law

Abstract extract from the introduction.The journal publishes both Dutch and English articles, and it is digitally available as an Open Access resource.Justifying Contract in Europe (hereafter: the book) explores the power of political reasons in European private law.1 It does so by engaging critically with the justifications offered by various political theories for their ideal European contract law. Thus, the book neither aims nor claims to remain neutral, as some critics have suggested.2 Instead, its stance is consistently critical (which is not the same as sceptical).3 The epistemic dimension here is the expectation that we can learn something about European contract law that other approaches leave unaddressed, that is, about European contract law as it should be. Crucially, however, the book is equally committed to the idea that learning about normative questions is a collective endeavor. I am, therefore, delighted, that the editors of the Netherlands Journal of Legal Philosophy decided to bring together six critical discussions of the book in a special issue. And I am deeply grateful to the authors for their insightful and challenging engagement with core aspects of my book. I would like to express my particular gratitude to two of them, Mirthe Jiwa and Lyn Tjon Soei Len, for acting, in addition, as guest editors of this special issue. Because the six contributions are invariably rich and dense, it is impossible to fully address all the important questions they raise. Therefore, in this response I will restrict myself to focusing, in each case, on the two or three points I consider their main and most challenging criticisms. The responses to two contributions take somewhat more space than the others, because they invited me to engage with the work of specific philosophers

Progress in EU contract law

Published online: 28 November 2022This article aims to contribute to the elucidation of the philosophical foundations of EU contract law through a critical discussion of different understandings of progress and their respective implications. Claims about progress and regress invariably refer to a normative or evaluative standard. Such standards, it is usually understood, allow us – backward-looking – to take stock and to determine how much progress (in our case) EU contract law has made, and provide us – forward-looking – with a sense of where (in our case) EU contract law should be going. Therefore, the core normative question in this contribution is: what if anything should count as progress in EU contract law? The article, first, examines understandings of progress that are immanent to EU contract law or to EU constitutional law, in particular the specific aims of directives and the various more general constitutionalised objectives. It, then, moves on to consider external standards for progress that have been suggested in the literature. These standards typically rely either on a teleological conception of the common or individual private law good, such as efficiency and self-authorship, or on a deontological conception of private law right, notably interpersonal and social justice. Subsequently, the article confronts recent post- and decolonial critiques of the very idea of progress and their implications for EU contract law and its study. Finally, it argues for a self-critical reflexive stance towards progress in EU contract law, grounded in a strong commitment to moral and epistemic equality, which requires overcoming unilateral universalisms

Reconstituting the Code of Capital : could a progressive European code of private law help us reduce inequality and regain democratic control?

Published online: 10 August 2022Katharina Pistor’s powerful critique of the key role that private law plays in creating private wealth, producing inequalities, and undermining democracy, raises the urgent question of what could be done to set things right or, at least, could be a step in the right direction. This article argues that a progressive European code of private law could be a meaningful part of the solution. A progressive private law code would be a code aimed at making progress towards a more just society, where there is less inequality and where we have more democratic control over our future. The progressive EPL-code would be completely different, in crucial respects, from the civil codes of the member states. It would be European (not national), be mandatory (not optional), have ‘constitutional’ ie primary EU law status (not merely secondary), consist of fundamental principles (not detailed rules), prioritise justice (not economic growth), and be radically democratic (not technocratic)

The right to justification of contract

First published online: 12 July 2020This paper defends a right to the justification of contract, with reciprocal and general reasons, and explores its main implications for the law of contract and its theory. It argues that the leading essentialist and other monist contract theories, offering blueprints for an ideal contract law based on the alleged ultimate value or essential characteristic of contract law, cannot justify the basic structure of contract law. Instead, it argues, a critical discourse theory of contract can contribute to the realisation of the right to justification of contract by exposing patterns of contractual injustice, in particular exploitation and domination by contract, that contract law can and should prevent

Anything goes in private law theory? : on the epistemic and ontological commitments of private law multi-pluralism

Published online: 25 July 2022This article argues that the New Private Law Theory (NPLT) recently proposed by Grundmann, Micklitz, and Renner is radically multi-pluralist, in that it combines pluralism along a multitude of dimensions with the absence of any organizing or constraining principle on the meta level. Consequently, the NPLT makes no epistemic commitments about private law truth or ontological commitments about private law reality. The article raises the question of whether a theory which makes no such commitments is a theory at all. Indeed, a site where quite divergent epistemic and ontological commitments are equally acceptable is not usually referred to as a theory but as a democracy. Therefore, the article discusses how NPLT could be turned into a democratic theory of private law. It concludes that to that end, NPLT’s selection of materials should be more diverse, in particular, less economically oriented, less Eurocentric, and more inclusive of various critical perspectives

O EFEITO HORIZONTAL DOS DIREITOS SOCIAIS NO DIREITO CONTRATUAL EUROPEU

O presente artigo discute que diante da falta de direitos sociais suficientemente executáveis nas relações horizontais – isto é, entre partes privadas – toda a batalha do século XX para a socialização do direito contratual (deveres da boa-fé, proteção do consumidor) corre o risco de começar novamente, mas agora em um nível mais alto – o constitucional

Private Law and the European Constitutionalisation of Values

According to the CFREU, the EU is founded on the general values such as values of human dignity, freedom, equality and solidarity. In addition, the TEU refers to a more political set of foundational values, ie respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. These references could be understood as purely ornamental, or as irrelevant in any case for private law. Indeed, it is true that the Court of Justice so far has never made any references to these values in private law cases. Still, the Court already has shown boldness before in the context of the interpretation and review of secondary EU law in private law cases, when it discovered general principles of EU law and general principles of civil law. Therefore, it should not be excluded that the Court may be tempted one day to follow the example of the German constitutional court that famously understands its national constitution as expressing an objective system of constitutional values. This paper explores what such an understanding of private law as an instrument for furthering common European values would entail and examines whether such an ethical reading of European private law would be desirable. It argues that the promotion by the EU of a set of official values through its laws is not compatible we the respect we owe each other in a society characterised by reasonable pluralism. In addition, it points to further difficulties, both of a moral and a practical nature, of the idea of advancing ethical values through private law. It concludes that although it is very well thinkable that the values to which the TEU and the Charter refer will one day be interpreted as an objective value system with (indirect) horizontal effects, the Court of Justice nevertheless should refrain from going down that road

Telemedicine for Kidney Transplant Recipients:Current State, Advantages, and Barriers

Telemedicine is defined as the use of electronic information and communication technologies to provide and support healthcare at a distance. In kidney transplantation, telemedicine is limited but is expected to grow markedly in the coming y. Current experience shows that it is possible to provide transplant care at a distance, with benefits for patients like reduced travel time and costs, better adherence to medication and appointment visits, more self-sufficiency, and more reliable blood pressure values. However, multiple barriers in different areas need to be overcome for successful implementation, such as recipients' preferences, willingness, skills, and digital literacy. Moreover, in many countries, limited digital infrastructure, legislation, local policy, costs, and reimbursement issues could be barriers to the implementation of telemedicine. Finally, telemedicine changes the way transplant professionals provide care, and this transition needs time, training, willingness, and acceptance. This review discusses the current state and benefits of telemedicine in kidney transplantation, with the aforementioned barriers, and provides an overview of future directions on telemedicine in kidney transplantation.</p