ON THE LEGITIMACY OF EUROPEANISING PRIVATE LAW Considerations on a Justice-making Law for the eu multi-level System Christian Joerges Introduction The Europeanisation of private law is very much a topical theme. And although this theme no longer very new, it has, in the last three years, developed a new dynamic. Anyone taking it up with the intention or hope of keeping up with the pace of legal policy development and remaining on top of the current stage of the academic debate is letting himself in for a race which he will inevitably feel like the unfortunate hare which, despite all its efforts, kept on arriving too late: something else will have changed or articles whose relevance has to be assessed first will have appeared. Anyone seeking to dodge such a race by specialising in the general is not necessarily better off. Has not everything already been said? Is it enough to add as Karl valentin did in a ceremonial address, " Quite so, but not by everyone? Surveys of the development of the law, legal policy and the academic debate remain meaningful if and because every new systematisation of the material takes some constructive steps. Admittedly, the more immense the material appears, the more time consuming it becomes to sift through it. In the present context, I have to have recourse to a form of reconstruction of the factual position that allows me to refer to previous work, 2 which I now sharpen so as to relate the debates on the Europeanisation of private law to the basic problem of the legitimation of law production in the EU (I). I distinguish between three strategies of legitimation and, in the next section(Il), go on to test and to query their viability on the basis of three sets of examples. These theses and antitheses are intended to pave the way for a synthesis in the closing section (ID) I Three competing patterns of legitimation Europe expects much of the law, exposing it to changes from top to bottom -and it has to justify these challenges itself. This is a requirement that may sound like a matter of course I Translated by lain F. Fraser, EUl Florence. A preliminary German version of this essay was presented ata workshop on pty Institute in April 2002. That text was rewritten for the lus Com m ference i e private law theory organised in co-operation with Gunther Teubner( Frankfurt a M )att European Uni Amsterdam on 28-29 November 2002, and subsequently revised again. I would like to thank many participants of the Amsterdam conference and the contributors to the workshop in Florence fortheir comments and suggestions. I am in particular indebted to Christoph Schmid(Florence/Munich), much more than the references to his work in my footnotes can indicate The artificially created term in the subtitle is a translation of the German construct Recht-Fertigungs-Recht, a notion used by Rudolf Wietholter in a recent essay: " Recht-Fertigungen eines Gesellschafts-Rechts (forthcoming in Christian Joerges and Gunther Teubner(eds ) Rechtsverfassungsrecht Recht-Fertiging zwischen Privatrechtsdogmatik und Gesellschaftstheorie, Baden-Baden: Nomos). lain F. Fraser suggests the translationjust-ifications of a law of society, adding that the German Recht-Fertigung can be etymologised as making/manufacturinglaw/right. Justi(ce)-fication'or justice-making law' may reta in a touch more of the German term's message But it needed a connoisseurof Roman law, namely Wolfgang Ernst(Bonn), to remind me that justumfacere is the common root of Recht-Fertigung and justification Esp Ch Joerges and G. Bruggemeier, Europa isierung des Vertrags und Haftungsrechts, in: P -Ch Muller-Graff (ed. ) Gemeinsames Privatrecht in der Europaischen Gemeinschaft, 2nd edn., Baden-Baden Nomos 1999, 301 ff, Ch Joerges, The Impact of European Integration on Private Law: Reductionist Perceptions, True Conflicts and a New Constitutionalist Perspective, European Law Journal3(1997),378.ON THE LEGITIMACY OF EUROPEANISING PRIVATE LAW: Considerations on a Justice-making Law for the EU Multi-level System1 Christian Joerges Introduction The Europeanisation of private law is very much a topical theme. And although this theme is no longer very new, it has, in the last three years, developed a new dynamic. Anyone taking it up with the intention or hope of keeping up with the pace of legal policy development and remaining on top of the current stage of the academic debate is letting himself in for a race in which he will inevitably feel like the unfortunate hare which, despite all its efforts, kept on arriving too late: something else will have changed or articles whose relevance has to be assessed first will have appeared. Anyone seeking to dodge such a race by specialising in the general is not necessarily better off. Has not everything already been said? Is it enough to add, as Karl Valentin did in a ceremonial address, ‘Quite so, but not by everyone’? Surveys of the development of the law, legal policy and the academic debate remain meaningful if and because every new systematisation of the material takes some constructive steps. Admittedly, the more immense the material appears, the more time consuming it becomes to sift through it. In the present context, I have to have recourse to a form of reconstruction of the factual position that allows me to refer to previous work,2 which I now sharpen so as to relate the debates on the Europeanisation of private law to the basic problem of the legitimation of law production in the EU (I). I distinguish between three strategies of legitimation and, in the next section (II), go on to test and to query their viability on the basis of three sets of examples. These theses and antitheses are intended to pave the way for a synthesis in the closing section (III). I Three competing patterns of legitimation Europe expects much of the law, exposing it to changes from top to bottom - and it has to justify these challenges itself. This is a requirement that may sound like a matter of course, 1 Translated by Iain F. Fraser, EUI Florence. A preliminary German version of this essay was presented at a workshop on private law theory organised in co-operation with Gunther Teubner (Frankfurt a.M.) at the European University Institute in April 2002. That text was rewritten for the Ius Commune Conference in Amsterdam on 28-29 November 2002, and subsequently revised again. I would like to thank many participants of the Amsterdam conference and the contributors to the workshop in Florence for their comments and suggestions. I am in particular indebted to Christoph Schmid (Florence/Munich), much more than the referenc es to his work in my footnotes can indicate. The artificially created term in the subtitle is a translation of the German construct Recht-Fertigungs-Recht, a notion used by Rudolf Wiethölter in a recent essay: ‘Recht-Fertigungen eines Gesellschafts-Rechts’ (forthcoming in Christian Joerges and Gunther Teubner (eds.), Rechtsverfassungsrecht. Recht-Fertiging zwischen Privatrechtsdogmatik und Gesellschaftstheorie, Baden-Baden: Nomos). Iain F. Fraser suggests the translation ‘just-ifications of a law of society’, adding that the German Recht-Fertigung can be etymologised as making/manufacturing law/right. ‘Justi(ce)-fication’ or ‘justice-making law’ may retain a touch more of the German term’s message. But it needed a connoisseur of Roman law, namely Wolfgang Ernst (Bonn), to remind me that justum facere is the common root of Recht-Fertigung and justification. 2 Esp. Ch. Joerges and G. Brüggemeier, Europäisierung des Vertrags und Haftungsrechts, in: P.-Ch. Müller-Graff (ed.), Gemeinsames Privatrecht in der Europäischen Gemeinschaft, 2nd edn., Baden-Baden: Nomos 1999, 301 ff.; Ch. Joerges, The Impact of European Integration on Private Law: Reductionist Perceptions, True Conflicts and a New Constitutionalist Perspective, European Law Journal 3 (1997), 378 ff