Who Does What in European Private Law - And How is it Done? An Experimentalist Perspective

Abstract

The EU has made it one of its goals to promote social inclusion (Strategy 2020). This article aims to identify how, within a changing context of lawmaking and governance, European private law can contribute to reaching that goal. Conventional knowledge of the economic regulation of Western economies holds that economic and social inclusion of consumers is, at least in part, dependent upon the ability of consumers to stand up for their interests and that private law is instrumental in providing consumers with the tools required to do so. Lawmaking, however, is becoming more complex as legal harmonisation in European private law is shifting from traditional lawmakers — legislators and public regulators — to other forms of governance, such as rule-making by private actors. The article suggests that a new model for lawmaking is needed, based in a coordination of legal pluralism that will be labelled ‘substantive deliberation’, which includes private actors as lawmakers with a shared responsibility for consumer inclusion. It makes a case for experimentalist governance as a mechanism that can lay down at least the basic premises for such coordination, provided that it is complemented by an instrumental-normative framework that ensures that the consumer protection goal is being met.