Scepticism, Rationalism and ‘the Romantic Law School of Maastricht’ – an interview with Jan Smits

law contract

photo: Steakpinball (CC BY 2.0)

The laws of different countries reach opposite conclusions… In law, no self-evident truths exist and a solution can only be arrived at after extensive reasoning.” We talk to Professor Jan Smits about the best way to understand Contract Law in the age of globalization.

 

You are well known for your work in Private Law and Comparative Law.  What first led you to become interested in these fields?  What have been the topics or questions which have most interested you from across this broad area?

Ever since I was a student at Leiden University, I have been fascinated by private law. There are two main reasons for this. First, I always like to tell my students that private law is the ‘law of the people’: everyone in his or her daily life is confronted with questions that relate to this field, ranging from concluding contracts and inheriting to owning property or being liable in damages. This makes it a highly relevant area for anyone. The second reason why I am attracted to the field is that present-day private law stands in a long tradition. In the last 800 years or so, academics and practitioners have been trying to find solutions to problems that still exist today, such as when a contract is binding or how to enforce it. This ‘civilian tradition’ allows us to compare solutions adopted in different European countries. To me, it would be impossible to do private law without such comparison. Together with the study of European law, contract law is one of the most international legal disciplines around.

In the last ten years, my focus has been on what is called ‘European private law’, an area that deals with questions of convergence and divergence of law: why is it that jurisdictions adopt different solutions to a similar problem, are there any good reasons for these differences and, if not, should we perhaps aim for one ‘European’ solution? I guess that I am known for my scepticism about the need for convergence: often, there is a good reason to have different solutions. At Maastricht I am not alone in this view, and this led some colleagues from outside of Maastricht to refer to us as the ‘Romantic Law School of Maastricht.’ We take pride in being referred to in this way!

 

So do you think there is a ‘homogenising effect’ on contract law, so that diverse jurisdictions are becoming more alike?

It is difficult to deny that such convergence takes place. On a global scale, the most important driving force of this is globalisation generally: the more companies and people engage in international transactions, the more knowledge these private actors have on foreign laws. This is likely to lead to a converging effect in the sense that these actors (and their lawyers!) choose for the jurisdiction they like best. The choice for English law is a popular one, even if one party is located in Mexico and the other one in Singapore. The more visible type of convergence takes place within the European Union, where the EU-legislator has enacted a large number of directives on consumer contract law. To me, however, the most striking development of the last two decades has been the colossal rise of European contract law as an academic discipline. When I was a student in the 1980s, debates on contract law were purely national: the English discussed English contract law, the Dutch discussed Dutch contract law and the Italians Italian contract law. This has completely changed. I very much enjoy participating in this truly international discussion, with European law journals, conferences, etc.

 

In what ways does teaching contract law differ from other areas of law?

In my experience, the main difference with other areas of law is that students are very well able to relate to the topic. They all conclude contracts on a daily basis and therefore know about the three main stages in the ‘life’ of the contract: formation, contents and contractual remedies. This makes it an ideal topic for a course in the first year. I particularly enjoy teaching first year students anyway: these students are often still very much willing to explore their own curiosity and ask questions that older students no longer dare to ask. This does require personal contact with students, but at my own university this is very well possible. We divide our 300 first year students into groups of 14 that we teach with a superb team of highly committed tutors.

 

What are the principle concepts involved in understanding Contract Law?  Where are people most likely to go wrong?

Contract law is governed by many different principles, but what interests me the most is the interaction between the principle of private autonomy and the principles of fairness and protecting public policy. Contract law is very much about people making their own choices, but sometimes the law does not recognise these choices as valid. This is not truly interesting if everyone agrees on where the boundaries of autonomy lie. For example, everyone agrees that it should not be allowed to hire a hitman to kill someone. But how about a surrogacy contract? Should the law allow a woman to carry a baby for somebody else in return for a remuneration? The laws of different countries reach opposite conclusions. This is also where people can go wrong: they may regard it as ‘self-evident’ that the law should be this or thus, but to me this is the biggest mistake one can make in studying law. In law, no self-evident truths exist and a solution can only be arrived at after extensive reasoning.

contract law textbook

Contract Law: A Comparative Introduction – by Jan Smits

 

Your new textbook looks at comparative contract law across jurisdictions.  Why do you take this approach?

The essential point of my new textbook is that it shows alternative answers to the questions that contract law is about. I am a fierce believer in a ‘dialogue with otherness’: students learn contract law best if they do not only hear about the solutions in England, but also about those in France or Germany, or other jurisdictions. To me, these different jurisdictions are like ‘experimenting laboratories’: they offer real life experience of how one can deal with contractual problems. I strongly believe this approach is the best one for the current generation of students. When today’s students come to university, they often already travelled extensively and are highly interested in other cultures. And if they start working with a law firm after graduation, they will very soon be confronted with foreign law. The traditional approach of only studying English law, German law or Dutch law then no longer makes much sense. The book can thus not only be used in international programmes such as the Maastricht European Law School, where we have a truly international classroom, but also as a first introduction to contract law in a national programme.

 

Who are the most influential scholars in Contract Law, and why are their contributions so important?

The answer to this question depends very much on the person one asks. If one asks someone who is doing national contract law, he or she is likely to mention some famous contract lawyer from his or her own country who wrote a much used handbook like Jacques Ghestin in France, Michael Martinek in Germany or Patrick Atiyah in England. What I value in a scholar is the ability to ‘think differently’ or to pioneer a field that was virtually non-existent before. This is why my heroes are usually scholars who did original work or who are able to apply insights from outside the law. These are not always the most influential scholars in the sense that they are followed by the courts or the legislature. One great source of inspiration for me is the Dutch academic Herman Schoordijk, who has always followed his own path and is a great independent thinker, going against anything that is well accepted. He recently published a new book at age 87. In 2006 I had the privilege of handing out a honorary doctorate to German professor Reinhard Zimmermann, who is no doubt one of the pioneers of the field of European private law. And I admire Richard Posner for his talent to question the self-evident.

 

And finally, what is the most unusual, or odd, law that you have come across in the area of contracts?

This is surely a legitimate question to ask, but in my view there is no such thing as an odd law. The essence of my approach towards law is that any legal rule can be legitimate as long as one has valid arguments to support it. Reversely, what may seem like a perfectly sound rule may have to be dismissed. To lay people, it seems strange at first sight that one is able to sell an object of high value (say a house) for only 1 cent, but this makes perfect sense when living in a society that values the autonomy of people.

 

jan smits Jan M. Smits (1967) is Professor of European Private Law at Maastricht University and academic director of the Maastricht European Private Law Institute (M-EPLI). He is also research professor of Comparative Legal Studies in the University of Helsinki.  He is a member of the editorial board of the Maastricht Journal of European and Comparative Law, the Journal of Civil Law Studies and the Electronic Journal of Comparative Law.  Apart from his academic activities, Smits is a deputy judge in the Amsterdam Court of Appeal. He is also the Dutch correspondent at UNCITRAL for the Digest of Case Law on the United Nations Convention on the International Sale of Goods (CLOUT). His new textbook Contract Law: A Comparative Introduction is published by Edward Elgar.

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  1. Scepticism, Rationalism and ‘the Romantic Law School of Maastricht’ – an interview with Jan Smits | Private Law Theory - Obligations, property, legal theory - October 8, 2014

    […] Q. You are well known for your work in Private Law and Comparative Law.  What first led you to become interested in these fields?  What have been the topics or questions which have most interested you from across this broad area? A. Ever since I was a student at Leiden University, I have been fascinated by private law. There are two main reasons for this … (more) […]

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