Law

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.

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.

This contribution aims to show that Euroscepticism is based on a particular view of how citizens' interests are represented in the European Union. 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.

This paper - delivered as the author's inaugural lecture on the 2010-2011 Maastricht-HiiL Chair on the Internationalisation of Law and therefore directed towards a general audience - challenges the prevailing paradigm that people's rights and obligations are primarily set by national law. The State monopoly in setting the law is rapidly being replaced by a multitude of new lawmakers that do not only include European and supranational institutions, but also private organisations. This phenomenon leads to the normative question how to deal with this emerging post-national private law. The approach chosen in this lecture is a functional one: the idea of codification is unpacked in terms of its functions. This means that it is established to what extent the functions that national codification of private law had in the past can be met in a different way in the future. To this end, attention is also paid to the role of legislators, private actors and law professors.

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.

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.

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.

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).

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 Jaakko Husa presents an argument in favor of rule-of-thumb functionalism, Jan 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.

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.

The Proposal for a Common European Sales Law (CESL), published by the European Commission in 2011, proposes to introduce an optional regime for cross-border sale of goods for the European Union. This contribution considers the choices that other actors than contracting parties (legislatures, courts, practitioners and academics) have to make in dealing with the proposed CESL. For national legislatures, the main choices are whether they want to turn the CESL into a real self-standing legal system and whether they want to guarantee the coherence, transparency and competitiveness of the national law. The European legislature has to decide if it wants to make use of CESL as a legislative model, while national and European courts have to find ways to ensure an autonomous interpretation. In so far as legal practitioners are concerned, the CESL will require alternative ways of informing private actors about how the optional regime differs from other (national) legal systems. This calls for a greater role for new technologies in providing legal information. Finally, academics have to decide if they want to use the CESL as a reference text in teaching and research. This is dependent on the relative qualities of the CESL compared with UP, PECL, PESL, DCFR and CISG. Analysis of these choices shows that the actual use of CESL by contracting parties will be highly dependent on the choices that other actors make in designing the legal environment.

This contribution explores the relationship between (private) law and nationalism from a public choice perspective. Its main point is that the nationalist ideology in law is largely guided by the self-interest of citizens, legislatures, courts and academics. ‘Nationalists’ (those who favour the congruence of state and nation) maximise their chances in life by capitalising on homogeneity: by acting in accordance with the unified norms of the nation-state, they are able to put themselves in a better position. This framework is used to explain the importance of the nationalist view of law in the 19th century. In addition, it allows an analysis of both the question of how to organise private law today and the question of how to explain present resistance against Europeanization. At the normative level, the claim is made that citizens should be allowed to search for community elsewhere, e.g. by opting into European sets of norms (such as the proposed CESL). A possible explanation for resistance against Europeanization is found in the close relationship between engaging in things European and the economic or psychological advantages obtained from this. This is confirmed by a limited survey of the extent to which national academics are active in the debate on European private law, which can be explained by the different incentives universities provide academics with in obtaining tenure and prestige.

Optional legal regimes, such as the Proposal for a Regulation on a Common European Sales Law (CESL), must derive their success from being chosen by parties. This contribution asks on what conditions it is dependent whether parties will choose for an optional regime such as the CESL. This requires a clear view of the added value of so-called vertical jurisdictional competition, of the preferences of business and consumers, and of the choices available to contracting parties when designing their contractual relationship. It is argued that in order to be an attractive competitor on the law market, the proposed CESL must meet three requirements. First, it must be significantly different from existing options by offering more innovative solutions, reflecting an alternative view of contractual justice or offering a wider scope of application. Secondly, parties should be able to easily recognise the benefits of a choice for the CESL, calling for innovative ways of marketing such as user-based rankings. Thirdly, the costs of making the CESL applicable must be low compared to other available options. Only if these requirements are met – which is not the case with the present Proposal – it is avoided that CESL turns into a lemon on the European law market.

It is well known that there is a gap between comparative law theory and the way in which comparative lawyers actually compare. This contribution was written for a book that attempts to bridge the gap between theory and practice in comparative legal studies. It offers a search for the methodological underpinnings of the author’s work in the field of European private law by looking at three research lines: work on uniformity and diversity in law, on how law develops over time and on the changing role of legal institutions in a post-national society.

This contribution compares the European harmonisation of intellectual property law (in particular of patent law) with harmonisation in European private law in general. This critical comparison allows lessons to be drawn on what to encourage and what to avoid in developing the two areas. Next to a comparative discussion of the need for harmonisation and of the used methods, ample attention is paid to the 2011 EU Proposal for unitary patent protection, aiming to create a unified European patent and the parallel effort to create a Unified Patent Court. In contrast with the approach of the European Union towards centralised patent protection, we offer an alternative account towards convergence of patent law. In this competitive model of patent law, the decision to apply for a national, European or unified patent is left to the parties. In addition, parties can not only address the future unified court, but are also allowed to address the national court of their choice. This should stimulate a competition among patent offices and courts to provide a patent protection that is uniform, of high quality, speedy and cheap. This has the potential to lead to ‘convergence through choice’ towards the patent regime that fares best in view of the needs of market actors.

This article investigates how the law is perceived in hip-hop music. Lawyers solve concrete legal problems on basis of certain presuppositions about morality, legality and justice that are not always shared by non-lawyers. This is why a thriving part of academic scholarship deals with what we can learn about laymen’s perceptions of law from studying novels (law and literature) or other types of popular culture. This article offers an inventory and analysis of how the law is perceived in a representative sample of hip-hop lyrics from 5 US artists (Eminem, 50 Cent, Dr. Dre, Ludacris and Jay-Z) and 6 UK artists (Ms Dynamite, Dizzee Rascal, Plan B, Tinie Tempah, Professor Green and N-Dubz). After a methodological part, the article identifies four principles of hip-hop law. First, criminal justice is based on the age-old adage of an eye for an eye, reflecting the desire to retaliate proportionately. Second, self-justice and self-government reign supreme in a hip-hop version of the law: instead of waiting for a presumably inaccurate community response, it is allowed to take the law into one’s own hands. Third, there is an overriding obligation to respect others within the hip-hop community: any form of ‘dissing’ will be severely punished. Finally, the law is seen as an instrument to be used to one’s advantage where possible, and to be ignored if not useful. All four principles can be related to a view of the law as a way to survive in the urban jungle.