Research programme

Coherent Private Law

How do we incorporate and embed rules and principles that enter the private law system?

Duration: 2003
Contact: Matthias Haentjens

Coherency is a value in itself in national private law systems. Rules that citizens must observe on the basis of a certain area of law, should ideally not be contradicted by rules from a different area of law. Guiding principles in one area of private law should also be guiding in other areas, unless there are good reasons to diverge from this. It is preferable that a legal definition applied in one area of private law is accorded the same meaning in other areas. These kinds of idealised system rules, which can be traced back to basic expectations with regard to predictability, clarity and enforceability of the private law system, are put to the test on a daily basis.

Constructing and reconstructing the Civil Code

The coherency of national private law systems and their doctrines are increasingly being put to the test as a result of all sorts of guidelines, regulations, treaties, codes and other influences outside private law. The consequences of this are felt directly and indirectly. Consequences for the ‘structure’ of the Dutch Civil Code (DCC) can be seen directly: it is constantly being constructed and reconstructed, often as a result of international developments. For example, important sections of property law in the DCC have become binding in nature and originated at the European level; this gives rise to new questions regarding application and interpretation.

Rules of law from a higher level, that have to be incorporated in a national private law system often rub against self-evident basic principles such as freedom of contract, the division between property and contract law, or also when it comes to the national choice to codify certain matters in codes of law, but not to do so for other matters. Other areas of law within the national legal system, such as regulation via administrative law legislation, also have an impact. Whether this concerns family law, consumer protection, insolvency issues, personal injury or company law, private law is a multilevel legal system where the traditional boundaries between public law and private law and also the boundaries between the law and other steering and structuring instruments are not only shifting, but are sometimes also blurred.

The expansion to include functional areas of the law such as financial law, insolvency law and child law as well as hybridisation in areas of law such as company law and family law demonstrate that private law and the coherence within it are not self-evident. These developments also require a review of the coherence i.e. the consistency and cohesion within private law. In certain areas of private law, the interwovenness of all these sources of law has become so prevalent that the question arises what the actual nature of private law is.

How do national legislatures deal with these issues concerning coherence?
How do they view their task to incorporate and embed rules and principles that enter the realm of private law?
Are they able to create a coherent framework that strikes the right balance in order to facilitate social and economic interaction between businesses, consumers and families?
And how do these rules and principles find their way to the civil courts?

The research program Coherent Private Law shows a clear connection with two spearheads of the Dutch National Sector Plan Law: the spearhead Empirical Legal Studies and the spearhead Institutions for Conflict Resolution. In the first spearhead, Leiden has chosen the theme 'markets, behaviour and the regulatory role of the law' as a starting point to advance empirical legal research, in the second Leiden focuses on how the judiciary is able to prevent and solve problems.

The main research questions of the programme are:

What is the impact of European law, convention law and other fields of law (particularly administrative law) on private law?
Hoe does private law deal with the interaction that arises from the impact of European law, convention law and other fields of law (particularly administrative law)?
How should this interaction be assessed, in light of the interests involved in the regulations to be incorporated and in view of the function of private law in society?

The research programme Coherent Private Law has a clear link to the university profile area Interaction between Legal Systems, which conducts research into the connections and interaction between the different areas of the law and the various ‘layers’ of the legal order.

Background

The research programme Coherent Private Law stems from the programme Vraagstukken van vermogensrecht (Issues of Property Law) (1997-2008). The main participants in the programme are researchers from the Institute of Private Law including the departments civil law (where research is conducted with respect to civil law, civil procedure law and private international law), child law, financial law (Hazelhoff Centre for Financial Law), notarial law and company law (encompassing company law/insolvency law and intellectual property law), and also from the department of legal history of the Institute for the Interdisciplinary Study of the Law, the department business studies from the Institute of Tax Law and Economics and legal economists from that institute. A number of researchers from the research programme Coherent Private Law have conducted research in the university research profile area Interaction between Legal Systems (2011-2020), which examined the cross-links and interactions between different areas of law and different "layers" of the legal order.

Coherent Private Law

Constructing and reconstructing the Civil Code

Academic Staff

PhD Candidates

External PhD Candidates