What do Nationalists Maximise? A Public Choice Perspective on the (Non-)Europeanization of Private Law

Jan M. Smits 1
  • 1 Jan Smits is Professor of European Private Law at Maastricht University and Research professor of Comparative Legal Studies in the University of Helsinki. Adraft of this paper was presented at the seminar Private Law and Nationalism (University of Amsterdam, 3 February 2012). Thanks are due to Vanessa Tünsmeyer for invaluable research assistance and to HiiL for financial support.


This contribution explores the relationship between (private) law and nationalism from a public choice perspective. Its main point is that the nationalist ideology in law is largely guided by the self-interest of citizens, legislatures, courts and academics. ‘Nationalists’ (those who favour the congruence of state and nation) maximise their chances in life by capitalising on homogeneity: by acting in accordance with the unified norms of the nation-state, they are able to put themselves in a better position. This framework is used to explain the importance of the nationalist view of law in the 19th century. In addition, it allows an analysis of both the question of how to organise private law today and the question of how to explain present resistance against Europeanization. At the normative level, the claim is made that citizens should be allowed to search for community elsewhere, e.g. by opting into European sets of norms (such as the proposed CESL). A possible explanation for resistance against Europeanization is found in the close relationship between engaging in things European and the economic or psychological advantages obtained from this. This is confirmed by a limited survey of the extent to which national academics are active in the debate on European private law, which can be explained by the different incentives universities provide to academics for obtaining tenure and prestige.

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This journal deals with contract law and serves as a pan-European platform for discussion and analysis. Since the early 2000s when this journal was created, European Contract Law has come to encompass an increasingly comprehensive body of law. The importance and breadth of the field and the methods and questions involved are such that ERCL has established itself as the specialised European journal in this area.