Judges in Utopia. Fundamental rights as constitutive elements of a European private legal culture

This chapter tests the hypothesis that, to the extent that private parties have to respect certain values (expressed in fundamental rights) within the EU legal order, the deliberation of these values may help constitute a legal culture in the field of European private law. The aim of the analysis is to get a better understanding of the judicial processes that generate substantive rules of European private law. In order to assess the validity of the hypothesis, three questions are addressed: Firstly, what is meant by ‘a European private legal culture’? Secondly, how do fundamental values relate to this legal culture? Thirdly, what should be the role of the judiciary in this context? It is submitted that for the hypothesis to have a bearing on reality it is essential that the development and study of legal culture engage with value pluralism in European private law. The judiciary’s contribution to the constitution of a European legal culture may be conceptualized in terms of it applying fundamental rights as ‘deliberative principles’ when deciding ‘hard cases’ of a private legal nature. The input of legal scholars is required for the further elaboration of the institutional framework as well as of the substance of private law in the EU and, this way, of a European legal culture