Martijn Hesselink proposes a 'Progressive code of European Private Law', which would seek to tame... more Martijn Hesselink proposes a 'Progressive code of European Private Law', which would seek to tame the 'legal steroids' that private law modules and savvy crafting by well-paid lawyers currently offer to to global capitalism. The present comment engages with one of the core characters of the proposed code, namely that it should 'consist of fundamental principles (not detailed rules)'. Rather than taking up the impossible task of suggesting (or speculating) what the principles should be, the paper aims to further operationalise certain aspects of what they shouldor should notdo. To this aim, the role of principles is assessed in relation to attempts to 'code for the 99 per cent'. Hence, the paper revisits certain mechanisms of so-called weaker party protection or social law through Katharina Pistor's coding analytics (priority, durability, universality, convertibility). Private law principles and their legacy are part of the resistance, or backlash, against social coding. The paper concludes that a code of principles that aims to be progressive in the sense Hesselink highlights should consider at least two requirements: first, principles should be expressly formulated in such a way that they do not stand in the way of progressive detailed rules; second, they need to broaden the private legal imagination. It is on this account that 'any amount of regulatory private law could not achieve what a (constitutionalised) code of private law principles could accomplish'.
The Real (New) Deal: Levelling the Odds for Consumer-Litigants On the Need for a Modernisation, Part II
Social Science Research Network, 2019
With its New Deal proposals, the European Commission aimed to secure that all consumers ‘fully be... more With its New Deal proposals, the European Commission aimed to secure that all consumers ‘fully benefit from their rights under Union law’. We argue that such commitment requires taking a step back from an exclusive focus on enforcement, to tackle challenges to the justiciability of consumer rights. Consumers must be seen both in their role as claimants and when they act as defendants. By means of a case-study threading together the main developments in the case law of the Court of Justice of the European Union concerning procedural guarantees for consumers from the past year, we seek to highlight the shortcomings of the current reliance on ‘judicial harmonization’. The identified shortcomings, we claim, show that limited harmonization of civil procedure is required, with regard to establishing minimum protective standards in cases involving consumers. For interested readers, we also list a number of specific issues that we think such harmonization should engage with.
New Private Law Theory ("NPLT") offers itself as almost a natural fit for legal education and in ... more New Private Law Theory ("NPLT") offers itself as almost a natural fit for legal education and in particular-I argue-legal education in the climate crisis. Yet, the world climate hardly features in the book and its impressive resource list. Without claiming to fill any existing gaps in the book, the Article seeks to articulate NPLT's relevance to sustainable legal education and at the same time tease out what facing the, social, fact of the climate crisis would add to NPLT's already rich framework.
Netherlands journal of legal philosophy, Aug 1, 2022
Even a small piece is a collective effort; thanks to Mirthe Jiwa, Marija Bartl and Niels Graaf fo... more Even a small piece is a collective effort; thanks to Mirthe Jiwa, Marija Bartl and Niels Graaf for their helpful input and to the Amsterdam Centre for Transformative Private Law for organizing the symposium for which the contribution has been first conceived. Thanks also to Martijn W. Hesselink for his inspiring scholarly commitment and usual equanimity in engaging with questions and criticism. All errors and misconceptions are mine alone. 1 'The general research theme of our program is European contract law. We understand contract law here in a wide and functional sense, i.e., the law of economic transactions'-see CSECL annual report 2012, with thanks to Chantal Mak for sharing her copy. The definition was usually assumed to exclude family law-in hindsight a somewhat pernicious move-but include property, insolvency and company law, next to, it goes without saying, matters of torts and securitization-not to mention private international law. 2 Which may in fact, to connect to one theme in the book and in this issue, have ironically amounted to a form of hermeneutical injustice. 3 Martijn Hesselink has been Academic Director of CSECL almost throughout the Centre's existence (2006-2019). 4 Martijn W. Hesselink, Justifying Contract in Europe: Political Philosophies of European Contract Law
Netherlands journal of legal philosophy, Dec 1, 2021
, the author wishes to thank Sanne Taekema and Mirthe Jiwa for their charitable reading and insig... more , the author wishes to thank Sanne Taekema and Mirthe Jiwa for their charitable reading and insightful suggestions. Mistakes are as usual mine alone. Websites have been last checked on
The paper looks at contracts and contract law as a place of both commodification and resistance t... more The paper looks at contracts and contract law as a place of both commodification and resistance to commodification. Commodification and contract are connected through the lens of flexibilisation, seen in particular as one party’s unilateral prerogative to adapt the content of the contract’s performance. Flexibilisation in this sense works to entrench the market mechanism (qua responsiveness to price and demand dynamics) in situations where marketisation makes the realisation of long-term human needs rely on the short-term horizon of market operations. Two such contexts of marketisation in the context of European Private Law are considered as examples, namely transfer of enterprise and acquisition of a (household) customer portfolio in energy markets. The paper argues that ‘taking contractual equality seriously’ can contribute to decommodification – or at least throw some sand in the wheels of commodification.
New Private Law Theory (“NPLT”) offers itself as almost a natural fit for legal education and in ... more New Private Law Theory (“NPLT”) offers itself as almost a natural fit for legal education and in particular—I argue—legal education in the climate crisis. Yet, the world climate hardly features in the book and its impressive resource list. Without claiming to fill any existing gaps in the book, the Article seeks to articulate NPLT’s relevance to sustainable legal education and at the same time tease out what facing the, social, fact of the climate crisis would add to NPLT’s already rich framework.
Martijn Hesselink proposes a ‘Progressive code of European Private Law’, which would seek to tame... more Martijn Hesselink proposes a ‘Progressive code of European Private Law’, which would seek to tame the ‘legal steroids’ that private law modules and savvy crafting by well-paid lawyers currently offer to to global capitalism. The present comment engages with one of the core characters of the proposed code, namely that it should ‘consist of fundamental principles (not detailed rules)’. Rather than taking up the impossible task of suggesting (or speculating) what the principles should be, the paper aims to further operationalise certain aspects of what they should – or should not – do. To this aim, the role of principles is assessed in relation to attempts to ‘code for the 99 per cent’. Hence, the paper revisits certain mechanisms of so-called weaker party protection or social law through Katharina Pistor’s coding analytics (priority, durability, universality, convertibility). Private law principles and their legacy are part of the resistance, or backlash, against social coding. The pa...
The chapter unpacks the politics of nexus between legal education, legal practice and legal resea... more The chapter unpacks the politics of nexus between legal education, legal practice and legal research. We start by problematising some common assumptions and subsequently lay out contemporary challenges to legal education and academia. We argue that we need to abandon all reflexes associating national=doctrinal=useful for legal practice and hence legal education, and international=non-doctrinal=useless for lawyers and hence legal education. First, legal education has to be conscious of the complexity of inter-connected, and ever-changing, laws, regulations and governance structures in the contemporary world. Second, it needs to be built on pluralist research agendas, that draw on doctrinal and non-doctrinal scholarship, with both national and global perspectives in mind. Finally, legal education for the 21st century has to be accountable to a broader set of actors than it has been the case thus far: it needs a more inclusive concept of ‘legal practice’.
The Real (New) Deal: Levelling the Odds for Consumer-Litigants On the Need for a Modernisation, Part II
SSRN Electronic Journal, 2019
With its New Deal proposals, the European Commission aimed to secure that all consumers ‘fully be... more With its New Deal proposals, the European Commission aimed to secure that all consumers ‘fully benefit from their rights under Union law’. We argue that such commitment requires taking a step back from an exclusive focus on enforcement, to tackle challenges to the justiciability of consumer rights. Consumers must be seen both in their role as claimants and when they act as defendants. By means of a case-study threading together the main developments in the case law of the Court of Justice of the European Union concerning procedural guarantees for consumers from the past year, we seek to highlight the shortcomings of the current reliance on ‘judicial harmonization’. The identified shortcomings, we claim, show that limited harmonization of civil procedure is required, with regard to establishing minimum protective standards in cases involving consumers. For interested readers, we also list a number of specific issues that we think such harmonization should engage with.
Book Review: Who does What? On the Allocation of Competences in European Private Law , edited by Bram Akkermans, Jaap Hage, Nicole Kornet and Jan Smits. (Cambridge: Intersentia, 2015)
Martijn Hesselink proposes a 'Progressive code of European Private Law', which would seek to tame... more Martijn Hesselink proposes a 'Progressive code of European Private Law', which would seek to tame the 'legal steroids' that private law modules and savvy crafting by well-paid lawyers currently offer to to global capitalism. The present comment engages with one of the core characters of the proposed code, namely that it should 'consist of fundamental principles (not detailed rules)'. Rather than taking up the impossible task of suggesting (or speculating) what the principles should be, the paper aims to further operationalise certain aspects of what they shouldor should notdo. To this aim, the role of principles is assessed in relation to attempts to 'code for the 99 per cent'. Hence, the paper revisits certain mechanisms of so-called weaker party protection or social law through Katharina Pistor's coding analytics (priority, durability, universality, convertibility). Private law principles and their legacy are part of the resistance, or backlash, against social coding. The paper concludes that a code of principles that aims to be progressive in the sense Hesselink highlights should consider at least two requirements: first, principles should be expressly formulated in such a way that they do not stand in the way of progressive detailed rules; second, they need to broaden the private legal imagination. It is on this account that 'any amount of regulatory private law could not achieve what a (constitutionalised) code of private law principles could accomplish'.
The Real (New) Deal: Levelling the Odds for Consumer-Litigants On the Need for a Modernisation, Part II
Social Science Research Network, 2019
With its New Deal proposals, the European Commission aimed to secure that all consumers ‘fully be... more With its New Deal proposals, the European Commission aimed to secure that all consumers ‘fully benefit from their rights under Union law’. We argue that such commitment requires taking a step back from an exclusive focus on enforcement, to tackle challenges to the justiciability of consumer rights. Consumers must be seen both in their role as claimants and when they act as defendants. By means of a case-study threading together the main developments in the case law of the Court of Justice of the European Union concerning procedural guarantees for consumers from the past year, we seek to highlight the shortcomings of the current reliance on ‘judicial harmonization’. The identified shortcomings, we claim, show that limited harmonization of civil procedure is required, with regard to establishing minimum protective standards in cases involving consumers. For interested readers, we also list a number of specific issues that we think such harmonization should engage with.
New Private Law Theory ("NPLT") offers itself as almost a natural fit for legal education and in ... more New Private Law Theory ("NPLT") offers itself as almost a natural fit for legal education and in particular-I argue-legal education in the climate crisis. Yet, the world climate hardly features in the book and its impressive resource list. Without claiming to fill any existing gaps in the book, the Article seeks to articulate NPLT's relevance to sustainable legal education and at the same time tease out what facing the, social, fact of the climate crisis would add to NPLT's already rich framework.
Netherlands journal of legal philosophy, Aug 1, 2022
Even a small piece is a collective effort; thanks to Mirthe Jiwa, Marija Bartl and Niels Graaf fo... more Even a small piece is a collective effort; thanks to Mirthe Jiwa, Marija Bartl and Niels Graaf for their helpful input and to the Amsterdam Centre for Transformative Private Law for organizing the symposium for which the contribution has been first conceived. Thanks also to Martijn W. Hesselink for his inspiring scholarly commitment and usual equanimity in engaging with questions and criticism. All errors and misconceptions are mine alone. 1 'The general research theme of our program is European contract law. We understand contract law here in a wide and functional sense, i.e., the law of economic transactions'-see CSECL annual report 2012, with thanks to Chantal Mak for sharing her copy. The definition was usually assumed to exclude family law-in hindsight a somewhat pernicious move-but include property, insolvency and company law, next to, it goes without saying, matters of torts and securitization-not to mention private international law. 2 Which may in fact, to connect to one theme in the book and in this issue, have ironically amounted to a form of hermeneutical injustice. 3 Martijn Hesselink has been Academic Director of CSECL almost throughout the Centre's existence (2006-2019). 4 Martijn W. Hesselink, Justifying Contract in Europe: Political Philosophies of European Contract Law
Netherlands journal of legal philosophy, Dec 1, 2021
, the author wishes to thank Sanne Taekema and Mirthe Jiwa for their charitable reading and insig... more , the author wishes to thank Sanne Taekema and Mirthe Jiwa for their charitable reading and insightful suggestions. Mistakes are as usual mine alone. Websites have been last checked on
The paper looks at contracts and contract law as a place of both commodification and resistance t... more The paper looks at contracts and contract law as a place of both commodification and resistance to commodification. Commodification and contract are connected through the lens of flexibilisation, seen in particular as one party’s unilateral prerogative to adapt the content of the contract’s performance. Flexibilisation in this sense works to entrench the market mechanism (qua responsiveness to price and demand dynamics) in situations where marketisation makes the realisation of long-term human needs rely on the short-term horizon of market operations. Two such contexts of marketisation in the context of European Private Law are considered as examples, namely transfer of enterprise and acquisition of a (household) customer portfolio in energy markets. The paper argues that ‘taking contractual equality seriously’ can contribute to decommodification – or at least throw some sand in the wheels of commodification.
New Private Law Theory (“NPLT”) offers itself as almost a natural fit for legal education and in ... more New Private Law Theory (“NPLT”) offers itself as almost a natural fit for legal education and in particular—I argue—legal education in the climate crisis. Yet, the world climate hardly features in the book and its impressive resource list. Without claiming to fill any existing gaps in the book, the Article seeks to articulate NPLT’s relevance to sustainable legal education and at the same time tease out what facing the, social, fact of the climate crisis would add to NPLT’s already rich framework.
Martijn Hesselink proposes a ‘Progressive code of European Private Law’, which would seek to tame... more Martijn Hesselink proposes a ‘Progressive code of European Private Law’, which would seek to tame the ‘legal steroids’ that private law modules and savvy crafting by well-paid lawyers currently offer to to global capitalism. The present comment engages with one of the core characters of the proposed code, namely that it should ‘consist of fundamental principles (not detailed rules)’. Rather than taking up the impossible task of suggesting (or speculating) what the principles should be, the paper aims to further operationalise certain aspects of what they should – or should not – do. To this aim, the role of principles is assessed in relation to attempts to ‘code for the 99 per cent’. Hence, the paper revisits certain mechanisms of so-called weaker party protection or social law through Katharina Pistor’s coding analytics (priority, durability, universality, convertibility). Private law principles and their legacy are part of the resistance, or backlash, against social coding. The pa...
The chapter unpacks the politics of nexus between legal education, legal practice and legal resea... more The chapter unpacks the politics of nexus between legal education, legal practice and legal research. We start by problematising some common assumptions and subsequently lay out contemporary challenges to legal education and academia. We argue that we need to abandon all reflexes associating national=doctrinal=useful for legal practice and hence legal education, and international=non-doctrinal=useless for lawyers and hence legal education. First, legal education has to be conscious of the complexity of inter-connected, and ever-changing, laws, regulations and governance structures in the contemporary world. Second, it needs to be built on pluralist research agendas, that draw on doctrinal and non-doctrinal scholarship, with both national and global perspectives in mind. Finally, legal education for the 21st century has to be accountable to a broader set of actors than it has been the case thus far: it needs a more inclusive concept of ‘legal practice’.
The Real (New) Deal: Levelling the Odds for Consumer-Litigants On the Need for a Modernisation, Part II
SSRN Electronic Journal, 2019
With its New Deal proposals, the European Commission aimed to secure that all consumers ‘fully be... more With its New Deal proposals, the European Commission aimed to secure that all consumers ‘fully benefit from their rights under Union law’. We argue that such commitment requires taking a step back from an exclusive focus on enforcement, to tackle challenges to the justiciability of consumer rights. Consumers must be seen both in their role as claimants and when they act as defendants. By means of a case-study threading together the main developments in the case law of the Court of Justice of the European Union concerning procedural guarantees for consumers from the past year, we seek to highlight the shortcomings of the current reliance on ‘judicial harmonization’. The identified shortcomings, we claim, show that limited harmonization of civil procedure is required, with regard to establishing minimum protective standards in cases involving consumers. For interested readers, we also list a number of specific issues that we think such harmonization should engage with.
Book Review: Who does What? On the Allocation of Competences in European Private Law , edited by Bram Akkermans, Jaap Hage, Nicole Kornet and Jan Smits. (Cambridge: Intersentia, 2015)
upcoming in ‘The Politics of European Legal Research: Behind the Method' Edgar Elgar (2022)
The chapter unpacks the politics of nexus between legal education, legal practice and legal resea... more The chapter unpacks the politics of nexus between legal education, legal practice and legal research and proposes some cornerstones for a more reflexive and forward-looking re-articulation. We start by problematising some common assumptions and subsequently lay out contemporary challenges to legal education and academia. We argue that we need to abandon all reflexes associating national=doctrinal=useful for legal practice and hence legal education, and international=non-doctrinal=useless for lawyers and hence legal education. First, legal education has to be conscious of the complexity of inter-connected, and ever-changing, laws, regulations and governance structures in the contemporary world. Second, it needs to be built on pluralist research agendas, that draw on doctrinal and non-doctrinal scholarship, with both national and global perspectives in mind. Finally, legal education for the 21st century has to be accountable to a broader set of actors than it has been the case thus far: it needs a more inclusive concept of ‘legal practice’.
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