On the Shoulders of Schlesinger: The Trento Common Core of European Private Law Project

Abstract

Schlesinger's Common Core methodology may be a theory that can be applied fruitfully, or, rather, an irreproducible result of Schlesinger's individual interpretive talents. The Trento project also must face the challenge of whether it can realize its stated intention to reject any ideological point of departure, since that would require it to adopt Schlesinger's principles without incorporating his preference for identifying similarity over difference.

Moreover, differing contexts are relevant to analyzing the utility of any given comparative approach. The same approach can have defects in the context of United States comparative law that may not affect European comparative law; it can have defects where the comparative undertaking is to form legal norms for the European Union that may not be an impediment where the goal of the comparative undertaking is to heighten intellectual understanding for scholarly purposes.

The Trento project's objective of revealing the core characteristics of private law in the EU's Member States is not unrealistic. While the differences that separate the common- and civil-law mentalities and cultures are irreducible and incommensurable, they nevertheless are not beyond the understanding of participants of both legal systems. These differences reflect the two great intellectual discourses of all of the Member States' societies, corresponding to the fundamental characteristics of the Enlightenment and Romanticism, movements that have been integral to all of the EU Member States.

The modern challenge facing comparative law is that, just as a new generation of comparatists has unearthed differences often ignored in the past, the categories of relevance to the future may still be indistinct and in a formative stage, requiring comparatists to remain detectives of new future relevances as national, linguistic and geographical attributes are changing in valence in a rapidly altering world.

Keywords: comparative law and theory, common core methodology