Chapter 2 - Predictability, Consistency, Accessibility and Responsiveness

Summary

Introduction

Even though the development of European private law has become more complex, European private law still has to be developed in accordance with benchmarks of predictability, consistency, accessibility and responsiveness, because private parties need to be able to rely on private law when entering into transactions with one another. This chapter will make explicit what benchmarks will be used in this book to assess whether the coexistence of actors in the development of European private law is problematic or beneficial. This has necessitated a limitation of benchmarks. Particularly, justice, legitimacy, coherence and legal equality will not serve as benchmarks in this book, although evidently, law should generally be developed in accordance with these ideas.

This chapter however pursues an additional aim, beyond making benchmarks for European private law in this book explicit. While these benchmarks have partially been deduced from debate in European private law, debate in European private law has so far rarely critically questioned which benchmarks should be met, how these benchmarks should be defined, and how they relate to one another. In addition, it will be submitted that developing European private law in conformity with the benchmarks used in this book should contribute to justice, legitimacy, coherence and legal equality more generally.

Accordingly, this book aims to consider what requirements of predictability, accessibility, consistency and responsiveness entail, and, in doing so, defends not only the idea that these benchmarks are especially suitable for the multilevel legal order, but also emphasises the importance of all these benchmarks. Notably, in developing the law, actors often seek to develop the law as much as possible with benchmarks defended in this chapter, which renders developing a hierarchical order between these benchmarks problematic.

The approach of this chapter will be as follows. Paragraph 2.2 will discuss benchmarks for good law more generally and paragraph 2.3. will turn to benchmarks for good European private law. Paragraph 2.4. will consider the benchmarks predictability, accessibility and consistency. The paragraph will argue that these benchmarks can be seen as requirements of the more general benchmark of legal certainty. Paragraph 2.5 will address the responsiveness of private law to society's legal views on justice and to the needs and preferences of legal practice.