Martijn W. Hesselink

Martijn W. Hesselink
European University Institute | EUI · Department of Law

About

183
Publications
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Introduction
Martijn Hesselink is a Professor of Transnational Law and Theory at the European University Institute in Florence. He is also a Professor of European Private Law at the University of Amsterdam (on leave). He is an editor of the ERCL. He served as an expert for the European Commission and Parliament. He was a visiting professor or fellow at several universities, including Católica Global School of Law, Sciences Po, Columbia Law School, and the Institute for European and Comparative Law at Oxford.
Additional affiliations
January 2006 - June 2016
University of Amsterdam
Position
  • Research Director
January 2006 - June 2016
University of Amsterdam
Position
  • Managing Director
May 2016 - May 2019
University of Oxford
Position
  • Visiting Research Fellow

Publications

Publications (183)
Article
The paper discusses the normative relationship between contract law and democracy. In particular, it argues that in order to be legitimate contract law needs to have a democratic basis. Private law is not different in this respect from public law. Thus, the first claim made in this paper is that also for contract law a democratic basis is a necessa...
Chapter
Full-text available
This paper explores the relationship between contract theory and European contract law. In particular, it confronts the leading contract law theories with the main characteristics of EU contract law. The conclusion is that the two do not match well. In particular, monist normative contract theories are largely irreconcilable with the contract law o...
Article
This paper critically engages with the European Regulatory Private Law thesis (ERPL). The main strength of ERPL is that it offers an entirely new perspective on European private law. However, as a complete theory of European private law, ERPL is too one-sided, both from a descriptive and from a normative point of view. With its strong focus on the...
Article
This paper argues that the European Union (EU) can be held morally responsible for ensuring justice in the internal market. In particular, the EU must prevent and sanction unjust market conduct by private parties through appropriate private law rules and ensure at least minimal protection of the private rights of internal market agents. The EU’s mo...
Article
Full-text available
This paper offers a critique of European Union (EU) consumer law’s role in commodification. Arguing that commodification is best understood as a normatively dependent concept, it contrasts two very different strands of commodification critique. While teleological critique refers to conceptions of the good life, authenticity, or the corruption of hu...
Article
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This article aims to contribute to the elucidation of the philosophical foundations of EU contract law through a critical discussion of different understandings of progress and their respective implications. Claims about progress and regress invariably refer to a normative or evaluative standard. Such standards, it is usually understood, allow us –...
Article
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This article offers a critique of injustices in European private law. It explains why the EU should be held morally responsible for the injustices created or supported by its private law. In particular, it demonstrates for several core elements of EU private law that they are unjust, because they cannot be justified with non-rejectable reasons, and...
Article
The Power of Reasons in European Private Law This article discusses the power of reasons in European private law. It does so in response to six articles written by critics, as part of a book symposium on Justifying Contract in Europe: Political Philosophies in European Contract Law (Oxford University Press, 2021). In particular, this contribution e...
Article
Full-text available
This article argues that the New Private Law Theory (NPLT) recently proposed by Grundmann, Micklitz, and Renner is radically multi-pluralist, in that it combines pluralism along a multitude of dimensions with the absence of any organizing or constraining principle on the meta level. Consequently, the NPLT makes no epistemic commitments about privat...
Article
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Katharina Pistor’s powerful critique of the key role that private law plays in creating private wealth, producing inequalities, and undermining democracy, raises the urgent question of what could be done to set things right or, at least, could be a step in the right direction. This article argues that a progressive European code of private law coul...
Chapter
The chapter presents the states of play in the two debates which this book aims to bring together, i.e. European contract law and political philosophy, and is intended for those readers who are not familiar with these debates. The first section offers an introduction to the Europeanization of contract law. Its main purpose is to set the scene, as i...
Chapter
This Chapter focuses on a distinctive characteristic of an important portion of contemporary rules of contract law that sets them apart not only from public law but also from other branches of private law (e.g. property and family law), i.e. that these rules can be set aside freely by the contracting parties. Contrary to national civil codes, howev...
Chapter
This chapter concerns the relationship between contract law and democracy. The central question is whether contract law, in order to be legitimate, must have a democratic basis, and what this would entail. This leads to a normative institutional comparison between legislators, courts, legal academics, and economic-sectoral experts as the protagonis...
Chapter
This chapter is dedicated entirely to what may be regarded as the most fundamental political question of contract law, i.e. what justifies the legally binding force of contract law? What business do public institutions have in recognizing and enforcing private agreements? Could a society decide not to enforce contracts and still be sufficiently jus...
Chapter
This chapter addresses the Europeanization of contract law from a normative perspective: can the Europeanization of contract law be justified? Or are there more convincing reasons why contract law should remain national or become global? Do we perhaps have a moral right to a European civil code? Or, conversely, are we entitled to make our contract...
Chapter
This chapter addresses the question of whether a society committed in principle to the legal recognition and enforcement of contracts is free, nevertheless—or even required—to withhold recognition and enforceability from certain contracts, by declaring them ‘null’ or ‘void’ under contract law doctrines such as ‘good morals’ or ‘public policy’, beca...
Book
This book explores the normative foundations of European contract law. It addresses fundamental political questions on contract law in Europe from the perspective of leading contemporary political theories. Does the law of contract need a democratic basis? To what extent should it be Europeanized? What justifies the binding force of contract and th...
Chapter
This Chapter discusses the question of whether contract law can and should differentiate between different types of contracting parties according to their relational or social weakness. Should contract law protect certain weaker parties, through the implementation of measures ranging from general rules against unfair exploitation or abuse of circum...
Chapter
This book explores the normative foundations of European contract law. It addresses fundamental political questions on contract law in Europe from the perspective of leading contemporary political theories. Does the law of contract need a democratic basis? To what extent should it be Europeanized? What justifies the binding force of contract and th...
Article
This paper challenges Peter Benson’s claim that his theory of justice in transactions can provide a public basis of justification in the Rawlsian sense specifically worked out for contract law. It argues that Benson’s distinct conception of the contracting parties and their relationships makes it an unlikely candidate for public justification in co...
Article
This paper defends a right to the justification of contract, with reciprocal and general reasons, and explores its main implications for the law of contract and its theory. It argues that the leading essentialist and other monist contract theories, offering blueprints for an ideal contract law based on the alleged ultimate value or essential charac...
Article
This paper critically engages with the European Regulatory Private Law thesis (ERPL). The main strength of ERPL is that it offers an entirely new perspective on European private law. However, as a complete theory of European private law, ERPL is too one-sided, both from a descriptive and from a normative point of view. With its strong focus on the...
Chapter
INTRODUCTION Does a private limited company have a fundamental right freely to conduct a business? Article 16 of the Charter of Fundamental Rights of the European Union (CFREU) proclaims that ‘[t]he freedom to conduct a business in accordance with Union law and national laws and practices is recognised ’. The Charter speaks of a ‘freedom ’that is ‘...
Article
This article explores the justice dimensions of the relationship between the Charter of Fundamental Rights and private law. It reaches three main conclusions. First, a partisan interpretation of the Charter and its horizontal effects in terms of controversial values would be difficult to match with the reasonable pluralism of worldviews characteriz...
Research
Full-text available
This paper critically engages with the European Regulatory Private Law thesis (ERPL). The main strength of ERPL is that it offers an entirely new perspective on European private law. However, as a complete theory of European private law, ERPL is too one-sided, both from a descriptive and from a normative point of view. With its strong focus on the...
Article
This paper explores the justice dimensions of the relationship between the Charter of fundamental rights and private law. It reaches three main conclusions. First, a partisan interpretation of the Charter and its horizontal effects in terms of controversial values would be difficult to match with the reasonable pluralism of worldviews that characte...
Article
According to the CFREU, the EU is founded on the general values such as values of human dignity, freedom, equality and solidarity. In addition, the TEU refers to a more political set of foundational values, ie respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. These references could be understood...
Article
Full-text available
This paper discusses the relationship between contract law and justice. In particular, it addresses the question whether the presence or absence of an unfair price rule could make a system of contract law, and thus the society to which it belongs, become unjust. The question is not merely a theoretical one; it is also practically relevant. Earlier...
Conference Paper
Full-text available
This paper argues that the EU can be held morally responsible for ensuring justice in the internal market. In particular, the EU must prevent and sanction unjust market conduct by private parties through appropriate private law rules and ensure at least minimal protection of the private rights of internal market agents. The EU’s moral responsibilit...
Chapter
Full-text available
The concept of civil law has two distinct meanings. that is, disputes between private parties (individuals, corporations), as opposed to other branches of the law, such as administrative law or criminal law, which relate to disputes between individuals and the state. Second, the term civil law is often employed to indicate a legal “tradition” or a...
Chapter
Full-text available
In 2012, Hans Micklitz presented a report (Gutachten) for the German lawyers' association (Deutscher Juristentag) on the future of consumer law. The focus of the report was primarily on German law. However, as usual, Micklitz' main argument clearly had a broader, Europe-wide vocation. Therefore, it is par-ticularly fortunate that the report recentl...
Conference Paper
This paper discusses the relationship between contract law and justice. In particular, it addresses the question whether the presence or absence of an unfair price rule could make a system of contract law, and thus the society to which it belongs, become unjust. The question is not merely a theoretical one; it is also practically relevant. Earlier...
Chapter
Full-text available
Also published in: M.W. Hesselink & L. Wei (transl.), Xinde ouzhou falü wenhua (《新的欧洲法律文化》), Zhongguo falü chubanshe (中国法制出版社(中国:北京)) [Beijing: China Legal Publishing House 2010]. Chinese translation of The New European Legal Culture (translated by dr. L. Wei), 1-16. This is a postscript to The New European Legal Culture which was written for the C...
Article
This paper argues that the EU can be held morally responsible for ensuring justice in the internal market. In particular, the EU must prevent and sanction unjust market conduct by private parties through appropriate private law rules and ensure at least minimal protection of the private rights of internal market agents. The EU’s moral responsibilit...
Article
Full-text available
Conference Paper
This short paper contains comments prepared for the 'Foundational Principles of Contract Law Roundtable’ held at Berkeley in January 2013. It discusses the relationships between contract law and democracy, between contract prices and human dignity, and between the American doctrine of unconscionability and the European doctrine of unfair exploitati...
Article
The European Commission’s recent proposal for a common European sales law was made in a political climate of rising nationalism. The Commission makes a solid economic and constitutional (legal basis) case for its proposal. However its argument, which focuses exclusively on the internal market, is not likely to fully convince the opposition. The rea...
Chapter
Full-text available
The central question in this paper is how many private law systems there are in Europe. That question is located at the crossroads of a variety of pluralities. There is a plurality of epistemological claims including the claim of epistemological (or ‘foundational’) pluralism, a plurality of legal materials (coming from different law makers, private...
Chapter
Full-text available
This paper discusses the legitimacy of general principles of private law as they have been formulated recently by the Court of Justice of the European Union and proposed by the European Commission. It addresses challenges from different strands in political theory including liberal perfectionism, political liberalism and Habermasian discourse theor...
Chapter
The references made by the Court of Justice in a number of recent cases to ‘the general principles of civil law’ may have been accidental, but they may also represent a deliberate first step towards a new European legal category and a new approach towards European private law. Because of their flexible and chameleonic nature, the general principles...
Chapter
Full-text available
Also published in: European Review of Private Law 2012(1), 195-212. Unlike the actual text for the proposed Common European Sales Law (CESL), which is based on extensive preparatory work by academics, the regime for opting into the instrument, which is set out in the main text of the proposed regulation, is entirely of the European Commission's own...
Article
This paper discusses the legitimacy of general principles of private law as they have been formulated recently by the Court of Justice of the European Union and proposed by the European Commission. It addresses challenges from different strands in political theory including liberal perfectionism, political liberalism and Habermasian discourse theor...
Article
The European Commission’s recent proposal for a common European sales law was made in a political climate of rising nationalism. The Commission makes a solid economic and constitutional (legal basis) case for its proposal. However, its argument, which focuses exclusively on the internal market, is not likely to fully convince the opposition. The re...
Technical Report
Full-text available
The text, structure and terminology of Chapter 8 CESL on ‘Unfair contract terms’ deliberately are quite similar to the Unfair Terms Directive 1993. However, given the fact that the Unfair Terms Directive 1993 only provided for minimum harmonisation and that, in this respect, the self-standing nature that the Commission envisages for the CESL is fun...
Article
Full-text available
The central question in this paper is how many private law systems there are in Europe. That question is located at the crossroads of a variety of pluralities. There is a plurality of epistemological claims including the claim of epistemological (or ‘foundational’) pluralism, a plurality of legal materials (coming from different law makers, private...
Article
Unlike the actual text for the proposed Common European Sales Law (CESL), which is based on extensive preparatory work by academics, the regime for opting into the instrument, which is set out in the main text of the proposed regulation, is entirely of the European Commission's own making. The approach adopted by the Commission is innovative and ge...
Article
Unlike the actual text for the proposed Common European Sales Law (CESL), which is based on extensive preparatory work by academics, the regime for opting into the instrument, which is set out in the main text of the proposed regulation, is entirely of the European Commission's own making. The approach adopted by the Commission is innovative and ge...
Article
Full-text available
Ook in het privaatrecht zullen we moeten wennen aan minder scherpe onderscheidingen tussen recht en beleid, nationaal en Europees recht, dwingend en aanvullend recht, publiek- en privaatrecht, en rechtsbron en inspiratiebron.
Article
Full-text available
Voor het Europese contractenrecht is het moment van de waarheid aangebroken. Na decennia van debat in de rechtswetenschap, de politiek en de krant over de wenselijkheid van een Europees BW heeft de Europese Commissie op 11 oktober jl. een voorstel gedaan voor een gemeenschappelijk Europees kooprecht.
Chapter
Full-text available
This paper examines the main possible rationales for judicial control of unfair contract terms (unequal bargaining, distributive justice, market failure, paternalism, the ethos of the market, comparative law, and the nature of an optional instrument) and concludes that none of them requires a distinction, in this respect, between business to consum...
Article
Full-text available
Er zijn ontwikkelingen op allerlei gebied: oneerlijke bedingen, koop op afstand, oneerlijke handelspraktijken, productaansprakelijkheid, passagiersrechten, consumentenrechten, enz. Zo geeft het Europees privaatrecht nog steeds een verbrokkeld beeld te zien. Toch zijn er ook duidelijk tendensen tot consolidatie en systematisering waarneembaar. Het H...
Article
Full-text available
This paper explores the possible implications of leading contemporary theories of political philosophy for some of the main questions that the political institutions of the European Union will have to decide on concerning the future of European contract law. Thus, it explores what a utilitarian, liberal-egalitarian, libertarian, communitarian, deli...
Chapter
Full-text available
It seems likely that an optional instrument on European contract law could have some positive impact on cross-border trade, although its size remains very difficult to estimate. Whether an optional instrument will increase legal certainty depends on the degree to which the European legislator will succeed in making some very clear and transparent c...
Chapter
Full-text available
If the role of the judge as a creator of rules is fully recognised, there is no need for a general good faith clause in a code or restatement of European private law. It may even do harm because it gives the courts an excuse for not formulating the rule which they apply. If, however, there is still some doubt as to the power of the courts, a good f...
Chapter
Full-text available
In March 2009 the Outline Edition of the 'academic' draft Common Frame of Reference (CFR) was published. The draft CFR is meant to play a key role in the further development of European private law, both as a 'tool box' for the European legislator and judiciary and as a basis for a possible optional code. The Outline Edition is very similar to the...
Book
Full-text available
Op 1 juli 2010 publiceerde de Europese Commissie het Groenboek over beleidsopties voor de ontwikkeling van een Europees contractenrecht voor consumenen en ondernemingen. Hiermee begon de Europese Commissie een publieke consultatie over de vraag wat de Commissie met het in 2009 gepubliceerde Ontwerp Gemeenschappelijk Referentiekader (DCFR) dient te...
Book
Full-text available
Since its original publication in 1994, 'Towards a European Civil Code' has become an international classic. This fourth edition of the book reflects the current state of the debate on the future of the European private law and provides materials for academic teaching in this field. The chapters of the book, written by a large number of experts on...
Article
The forthcoming instrument on European contract law, be it in the shape of an optional code for cross-border contracts or as an official toolbox for the European legislator, is likely to have a spill-over effect on adjudication. Judges will have no great difficulty in finding model rules and definitions that might come in handy when dealing with ga...
Article
Full-text available
Feiten en beslissing Caja de Madrid (hierna ook: de bank) was met haar klanten hypothecaire leningen overeengekomen met een variabele rente. Bij zulke overeenkomsten moet periodiek het rentepercentage vastgesteld worden aan de hand van een referentierente. In dit geval bevatten de modelovereenkomsten een zogenaamd 'afrondingsbeding' op grond waarva...
Chapter
Full-text available
It has been suggested recently by several scholars that the ideas of Friedrich von Hayek should play a prominent role in shaping the future of European private law. This paper examines what we can learn from Hayek for the further development of European contract law. Hayek rightly underlines that law is a contingent phenomenon, historically grown i...
Article
The proposed directive fits very well with a sharp distinction between b2c and b2b contracts and comprises several features that - especially as a combination - provide an optimal basis for a future European consumer (contract) code. The same characteristics that make the directive a good preliminary step toward a European consumer law code progres...
Chapter
Chinese translation of 'The new European legal culture: ten years on', in: G. Helleringer & K. Purnhagen, Towards a European Legal Culture (Baden-Baden: Nomos/C.H. Beck/Hart Publishing 2014), 17-24. This is a postscript to The New European Legal Culture which was written for the Chinese translation almost a decade after the original essay was publi...
Book
Full-text available
Chinese translation of 'The New European Legal Culture' (Deventer: Kluwer Law International 2001), 103 p. Europe is currently facing a shift from a rather formal, dogmatic and positivistic to a more substance-oriented and pragmatic approach to private law. It would probably be exaggerated to speak of a European revolt against formalism. However, it...
Chapter
Full-text available
Reprint of ‘Common Frame of Reference & Social Justice’, 4 European Review of Contract Law 3 (2008), 248-269. The article evaluates the Draft Common Frame of Reference (DCFR) in terms of social justice. Overall from the point of view of social justice, the DCFR is fairly balanced. The list of underlying values, which may play an important role in t...
Article
This is a postscript to The New European Legal Culture which was written for the Chinese translation almost a decade after the original essay was published. That essay argued that Europe was facing a shift from a rather formal, dogmatic and positivistic approach to a more substance-oriented and pragmatic approach to private law. Ten years on, has t...
Article
Full-text available
Also published in: Juridiska Föreningens Tidskrift (JFT) 3-4/2009, 298-309. At present, the proposal for a Consumer Rights directive and the draft Common Frame of Reference are almost entirely disconnected. This is surprising in the light of the Commission's original plans. It is also unfortunate in the light of the CFR's potential for making Europ...
Conference Paper
This report analyses the academic DCFR in the light of freedoms, rights and social justice. It first investigates whether the DCFR takes the autonomy of equally strong parties as its starting point or rather incorporates elements of ‘social justice’. The evaluation takes place on the basis of five key elements of social justice, i.e. legitimacy, th...
Technical Report
Full-text available
Chapter in 'State of Play and Prospects for Legal Questions and Parliamentary Law', report for the European Parliament
Article
Full-text available
The Draft Common Frame of Reference is likely to become an authoritative source of law in a substantive sense. Even if it will not obtain any formal status (e.g. as an optional code) in the near future, it will probably become an important source of inspiration for the Europeanization of private law. This likely course of events is also desirable:...

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