Chantal Mak, Laura Burgers and Anna van Duin organised a workshop on 28-29 September 2017 about so-called ‘hard cases’ of private law. The European judiciary increasingly takes on legislative authority when deciding ‘hard cases’ of private law, such as the Urgenda decision (2015) and the CJEU judgment in Aziz (2013). How can we evaluate such rulings?
Theory and practice suggest that the European judiciary increasingly takes on legislative authority when deciding ‘hard cases’ of private law. The courts are more often called upon to balance different values and to reconcile conflicting interests, such as harmonising the public interest in private relationships, as in the Urgenda decision (2015) and the CJEU judgment in Aziz (2013). The core of such balancing is inevitably political, and the court’s value judgements as such invariably yield political implications.
At present, a continuing ‘Europeanisation’ of private law extends this judicial balancing to the interplay of national and supranational rules in the multi-layered order of the EU, involving diverging ideas of justice and principles of law at the interface of EU and national private laws. Such hard cases may foment innovative case law, which sometimes attracts the label ‘judicial activism’.
How can we explain such rulings? How do we assess their democratic legitimacy? And, ultimately, what should the role of the judiciary be when reconciling conflicting interests at the interface of EU and national private laws? The workshop ‘Judges in Utopia. Judicial law-making in European private law’ held on 28-29 September 2017 facilitated dialogue between leading academics and legal practitioners on these grand questions.
Contributions were made by, among others, Jaap Spier and Luc Lavreysen, who argued that the judiciary should take on a more active role in solving global issues such as climate change in order to compensate for political inertia. CJEU Advocate General Maciej Szpunar elaborated on the procedural autonomy of the Court, and Laura Burgers proposed a democratic legitimation of the Urgenda decision from Habermasian democratic theory. Judge Fernández Seijo highlighted the importance of opening up a pan-European public sphere of deliberation on value choices such as those that arose in Aziz.
The workshop was held on 28 and 29 September 2017. Among the speakers were Advocate General Maciej Szpunar, Fabrizio Cafaggi, Floor Fleurke, Jaap Spier, Luc Lavreysen, Jose Maria Fernández Seijo, Aida Torres Perez, Dorota Leczykiewicz, Oliver Gerstenberg, Hans Petter Graver, Aurelia Colombi Ciacchi, Mónika Józon and Micheal Dowdle.
The research project ‘Judges in Utopia. Judicial law-making in European private law’ concerns the interaction between national and European judiciaries in the deliberation of value choices in private law disputes. It is coordinated by Chantal Mak (CSECL) and currently hosts PhD candidates Laura Burgers and Anna van Duin. Interested? Stay updated by reading the blog at http://judgesinutopia.blogspot.nl.