PP696
Analítico de Periódico
GRUNDMANN, Stefan
The concept of the private law society : after 50 years of European and European business law / Stefan Grundmann
European review of private law, Bedfordshire, v.16n.4(2008), p.553-581
DIREITO COMUNITÁRIO, DIREITO PRIVADO, DIREITO COMERCIAL EUROPEU, DIREITO COMUNITÁRIO DA CONCORRÊNCIA
Böhm’s Concept of the Private Law Society provides an interpretation of history and a value judgment: the French revolution is seen as the moment in which public order and hierarchies ceased to constitute the main instruments of societal organization and consensus and private arrangements took the lead. The superiority of this type of private law society is evidenced by the fact that it enhances personal freedom and profits from the diversity of experiences and preferences of its members – creating, for instance, more efficient markets. The concept of a private law society is, however, far from advocating a pure laissez–faire approach; rather, it couples private autonomy with market order, which must be guaranteed by states. Thus, in the concept of the private law society, the power of public players is constrained by the supremacy of private law arrangements (any public law order requires justifi cation). The power of private players is constrained by a market order which limits this power. The mechanism of private arrangement is protected against both state and private power. While Böhm and those advocating the advantages of a private law society mainly referred to competition law as a prerequisite of good market order, the entire societal constitution of the European Union and the entire fifty years of development can be discussed from this perspective. This includes such controversial issues as consumer law, antidiscrimination law, application of the concept of fundamental freedoms, and fundamental rights to private parties and the principle of subsidiarity.