The Project

Political-philosophical calls for ‘more Europe’ as a response to the economic crisis reveal the lack of civic solidarity underlying the project of European integration. Echoes of this debate inform the judicial application of the rules facilitating market integration, most importantly rules of private law (contracts, property, liability). The concept of social justice endorsed at EU level continues to significantly diverge from national concepts. The interplay of ideas of justice has not yet resulted in a lasting constitutional settlement that is able to reconcile conceptions of the ‘common good’ pursued in European society. Consequently, judges struggle to align national social rights with European market freedoms in cases concerning private-legal transactions.

While the analysis of the ‘social deficit’ in European private law has long followed a critical, deconstructive approach, this project takes a constructive turn. It aims at contributing to a normative theory of judicial rulemaking for the field of European private law. Accordingly, it assesses judicial reasoning in European private law in light of theories of European constitutionalism and philosophical theories of deliberation. The focus lies on the potential of fundamental rights to deliberate value-choices in judicial rulemaking in the field of private law. Within this general framework, in-depth studies are conducted of: the impact of Article 47 of the EU Charter of Fundamental Rights on European contract law, the legitimacy of judicial law-making in climate change litigation, different conceptions of social justice in European private law adjudication, and the contribution of private law adjudication to polity-building in Europe. These studies contribute to the elaboration of a normative theoretical framework that (a) reconceptualises the role of judges in today’s Europe, especially in their relation to the legislature, and (b) provides them with methodological guidance for the solution of private legal disputes on the interface of national private law and European law.