2015
DOI: 10.1515/ercl-2015-0006
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Democratic contract law

Abstract: This article discusses the normative relationship between contract law and democracy. In particular, it argues that in order to be legitimate contract law needs to have a democratic basis. Private law is not different in this respect from public law. Thus, the first claim made in this article will be that also for contract law a democratic basis is a necessary condition for legitimacy. A fully democratic basis may also be a sufficient condition for a legitimate and just contract law. However, my argument in th… Show more

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Cited by 10 publications
(5 citation statements)
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“…Given the different backgrounds and aspirations of national and European law, European private law is not always fully coherent or complete. Furthermore, an ongoing academic debate addresses the democratic and justice deficits of European law, namely the shortcomings in the process of involving European citizens in the enactment of new legislation and defining shared views on justice, and how to mend them (Hesselink, 2015; Caruso, 2015). The study of European private law thus raises many of the framing questions for which Fraser seeks to provide answers.…”
Section: Understanding ‘Wild Zones’ In Transnational Private Lawmentioning
confidence: 99%
“…Given the different backgrounds and aspirations of national and European law, European private law is not always fully coherent or complete. Furthermore, an ongoing academic debate addresses the democratic and justice deficits of European law, namely the shortcomings in the process of involving European citizens in the enactment of new legislation and defining shared views on justice, and how to mend them (Hesselink, 2015; Caruso, 2015). The study of European private law thus raises many of the framing questions for which Fraser seeks to provide answers.…”
Section: Understanding ‘Wild Zones’ In Transnational Private Lawmentioning
confidence: 99%
“…Other special developments of the regulatory capacity of trade agents fall under the category of better regulation and governance, such as initiatives on EU contract law (Cafaggi, 2007;Hesselink, 2015); consumer legislation and policies (Schulte-Nölke, 2015); access to justice and ADR in direct connection with the digital agenda and the DSM (Cortés, 2016); and electronic commerce, to name the few that can relate to the SC proposal. ICTs are now used to achieve these supranational goals, in the field of ADR with the ODR Regulation (European Commission, 2016), for example, but in respect to the smallest components of the governance of the EU, low intensity and consumer transactions, a lot of work must still be done.…”
Section: Operationalization 321 Social and Eu Institutional Backup mentioning
confidence: 99%
“…An exception is the democratic theory of contract law that has been advocated by Martijn Hessenlink (see, e.g., Hesselink 2015). Hesselink's theory, however, differs crucially from Benson's in that it is not a theory about the reasons for enforcing contracts: It is not, in this sense, a theory of justification in contract-related court decisions.…”
Section: Introductionmentioning
confidence: 99%
“…Instead, Hesselink’s emphasis is on procedure, to the detriment of reasons that can and have been put forward by different theories as reasons capable of explaining (and justifying) the practice of contracts. Even if its rules differ from some of these reasons, contractual law will be legitimate, according to Hesselink (2015, 83), “[i]f all relevant reasons and arguments (including moral and ethical arguments), made by people from different corners in society, have had a fair and equal chance of influencing the contract law making process.”…”
Section: Introductionmentioning
confidence: 99%