Tracing the History of Mandatory Norms in Private Law
Mandatory norms in private law are of central interest in legal scholarship for many reasons. As legislators readily make use of mandatory norms to implement regulatory interests and courts usually apply mandatory rules ex officio, further attention is required. Private parties must know of the existence of mandatory norms in order to conclude valid contracts, making mandatory law of key importance in legal practice. Equally, mandatory private law has attracted the attention of legal theory, as the distinction between mandatory and non-mandatory law defines the degree of individual freedom in a legal system. Hence, it touches on crucial debates about the content, extent and raison d’être of private autonomy.
Because of the recent steady increase in mandatory private law norms in all European legal systems, there has been strong criticism of national and European legislators in scholarship. In contrast, little attention has been paid to the role of the courts in the creation and development of mandatory private law and the associated legal doctrinal consequences. This is peculiar, as it is not only up to the courts to decide how mandatory norms must be interpreted, but often also whether a norm has a mandatory character at all. This raises questions about judicial law-making and a potential conflict with fundamental constitutional principles.
From a historical and comparative perspective, the research project aims not only to question the legality of this development but also to analyse the doctrinal and methodological consequences of the creation of mandatory law by judges. This study employs an empirical case law analysis of mandatory norms in various areas of private law as its methodological approach.
Because of its legal-dogmatic and methodological focus, the research project is embedded in the research field ‘Sources of Law and Legal Methods’. It also contributes to the research field ‘Private Law and Dispute Resolution in a Historical‚ Comparative and Transnational Perspective’, which inter alia focusses on the question as to how private law rights have historically been enforced by judges. By assessing how private law norms are formed through the process of judicial dispute resolution itself, this project adds a further perspective to the research field and examines this private law development from a comparative law perspective up to the present day.