Saprai, P; (2016) The Convergence of Contract Law in Europe and the Problem of Legitimacy: A Common Lawyer's Perspective. European Review of Contract Law , 12 (2) pp. 96-135. 10.1515/ercl-2016-0007.

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Abstract

In 2001, the European Commission mooted the idea that contract law should converge in Europe. The idea generated wide-ranging debate about the merits of convergence. The multi-disciplinary nature of this debate has led to important insights, but also conceptual confusion. In this paper, I rely on philosophical tools to clarify key concepts, and identify central issues. In particular, I argue that value pluralism and state sovereignty give rise to the central problem of the legitimacy of the harmonisation project. The issue of legitimacy has not been handled well in the literature. There has been an overly narrow focus on the issue of constitutional legitimacy, or the notion of ‘legitimacy as consent’. I attempt to broaden the discussion by considering other accounts of legitimacy. I argue that whichever account is used, the legitimation burden is significant and it is unclear it has been surmounted. Beyond legitimacy, I consider how efficacy considerations seem to militate against convergence.

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