While Father Frost turned Amsterdam into a winter wonderland, trains came to a stand-still and skating fever started rising, a small group of academics gathered at the Oudemanhuispoort (photo by Joasia Luzak) last Friday to discuss the relationship between private law and nationalism. If one has to get snowed in to debate this important topic, who better to do so with than Martijn Hesselink, Guido Comparato (the two organisers of the seminar), Ruth Sefton-Green, Ralf Michaels, Jan Smits and Hugh Collins?
The seminar, which formed the conclusion of a HiiL project, explored the question whether resistance against the Europeanisation of private law on the level of the Member States might be explained on the basis of nationalism. As the organisers framed it:
'If nationalism is the political principle according to which the political and the national unit should be congruent (Gellner) should then not the resistance against the Europeanization of private law, often in the guise of technical arguments, not be regarded as a form of (crypto-)nationalism if such arguments consistently regard the nation state as the most natural locus for private law making? And, on the other hand, if nations are imagined communities (Anderson), construed by men and women over time, should not then the work on a Common European Sales Law and a European Law Institute count as important instances of European national building? Nationalism seems bad, indeed dangerous, in light of the catastrophic role it played in the 20th Century. However, more recently it has been argued that nationalism and liberalism are not irreconcilable (Tamir) and that the solidarity that is needed for a functioning welfare state requires a common sense of belonging that is found in the nation (Miller). Can a similar normative argument be made in favour of liberal private law nationalism?'
For European consumer law, these queries are of great relevance, since their answers may explain some Eurosceptical tendencies in the approaches to EU law in certain Member States and propose ways to overcome these. The presentations of Ruth Sefton-Green and Ralf Michaels highlighted instances of crypto-nationalism (which in some cases were not even very cryptical) in French and English law, taking into account the importance of national culture and language, as well as concerns of democracy and otherness. Jan Smits sought an explanation for nationalism in public choice theory, sketching how the search for homogeneity within a nation-state could serve the maximisation of the interests of actors ('nationalists') within a society, and then exploring whether the nation-state still offered the best framework for the pursuit of these actors' interests. Hugh Collins, on the other hand, welcomed all participants to the seminar to the 'Study Group on Social Justice in European Private Law', emphasising the importance of further consideration of the authority of principles of private law that determine what are just outcomes in economic and social interactions. Martijn Hesselink made a strong case for the newly proposed Common European Sales Law to be considered as a common European model of justice between private parties. On the basis of his analysis, as well as the in-depth research done on the theme by Guido Comparato, it may be argued that pro-European views can be seen as a form of 'Euro-nationalism'. Outlining a constructive approach to the application of fundamental rights in European private law, my presentation during the seminar sought to find support for this thesis in a combination of constitutional and private law theory. As Guido suggested, finally, it may be argued that a broad notion of legal culture is no longer bound to the geographical dimensions of nation-states, but could benefit from 'stepping away from the blurring shadow of the Volksgeist'.
Some pictures of the seminar can be found on the website of the Centre for the Study of European Contract Law. The papers are meant to be published in the European Review of Contract Law later this year.