What do nationalists maximise? A public choice perspective on the (non-) Europeanization of private law

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This contribution explores the relationship between (private) law and nationalismfrom a public choice perspective. Its main point is that the nationalist ideology in law is largelyguided by the self-interest of citizens, legislatures, courts and academics. ‘nationalists’ (thosewho favour the congruence of state and nation) maximise their chances in life by capitalisingon homogeneity: by acting in accordance with the unified norms of the nation-state, they areable to put themselves in a better position. This framework is used to explain the importanceof the nationalist view of law in the 19th century. In addition, it allows an analysis of both thequestion of how to organise private law today and the question of how to explain presentresistance against europeanization. At the normative level, the claim is made that citizensshould be allowed to search for community elsewhere, e.g. By opting into european sets ofnorms (such as the proposed cesl). A possible explanation for resistance against europeanizationis found in the close relationship between engaging in things european and theeconomic or psychological advantages obtained from this. This is confirmed by a limitedsurvey of the extent to which national academics are active in the debate on european privatelaw, which can be explained by the different incentives universities provide to academics forobtaining tenure and prestige.
Original languageEnglish
Pages (from-to)296-310
JournalEuropean review of contract law
Publication statusPublished - 1 Jan 2012

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