Vidi project 'Judges in Utopia'
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 developing a (partial) normative theory of judicial rulemaking for the field of European private law. First, it analyses the implications of theories of European constitutionalism and philosophical theories of deliberation for judicial reasoning in this area. 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 will be conducted of: (i) the interplay between principles of law in the multi-level order of the EU and its Member States, and (ii) the guaranteeing of effective remedies on the interface of EU and national private laws. Combined with the continuous input of an Expert Group, these studies will feed into the elaboration of a normative theory 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 identification and integration of views on the ‘common good’ in the resolution of private legal disputes.
General theoretical framework
The general theoretical framework for the project is developed by the team leader. It aims at providing a (partial) normative theory of adjudication for the solution of private legal disputes that are governed by rules of law generated on the interface of EU and national law. This part of the research runs through all five project years and performs three interrelated functions:
- it forms the framework for the research project as a whole;
- it lays the theoretical foundation for the specific sub-projects;
- it integrates the results of the three sub-projects in the normative theory of adjudication that will result from the project.