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Abstract:
The rise of post-national entities, such as the institutions of the European Union and of free-trade regimes, bears no obvious relation to the traditional pillars of western private law (mostly contracts, torts, and property doctrines). The claim of this article is that the global diffusion of private law discourse contributes significantly to the emergence of new centers of authority in the global arena. The article tests the impact of private law arguments in three contexts - the growing legitimacy of regional human rights adjudication, the consolidation of the institutions of the European Union, and the higher binding force of international investment treaties. Private law gains popularity in global legal discourse when its most centrifugal features are emphasized (individual autonomy, horizontal dispersion of authority, indifference to governmental institutions). Once popular, however, private law discourse also evokes centripetal arguments (aspiration to internal coherence, uniformity in adjudication) and therefore paves the way to new centers of public, vertical power. Most noticeably, private law discourse provides regional or global institutions with a patina of distributive neutrality, and therefore facilitates the endorsement of ideologically laden institutional developments.

private law, state-making, globalization, European Union, free-trade regimes, regional human rights adjudication, consolidation of institutions of the EU, international investment treaties

Abstract:
The European Union's member states are currently implementing two new directives, prohibiting discrimination on such grounds as race, ethnicity and religion. Both directives allow for positive action - a European version of affirmative action confined to "soft," non-quota measures arguably reconcilable with the canon of individual equality. Based on time-honored EC provisions on gender discrimination, the European Court of Justice has already scrutinized, and occasionally prohibited as in breach of EC individual rights, states' positive action in favor of women. The Court is now likely to extend the same mode of scrutiny to the forms of discrimination contemplated by the new directives.

Against this development, this Article argues for a reconceptualization of positive action. Rather than exceptional aberration from the paradigm of individual equality, affirmative action in both soft and hard mode is an identity-sensitive mechanism for the reallocation of resources, to be placed along a continuum of redistributive techniques. Identity-based redistribution measures are already known to both EC and state legal actors, in ways that a traditional individual-rights discourse both fails to capture and succeeds at hiding. At the present stage of integration, states' most significant redistributive policies are mostly exempt from judicial review. States should therefore be able to experiment with affirmative action in favor of minorities within national constitutional constraints and in light of local equilibria, but with no supranational review. The Open Method of Coordination - a "soft" instrument of EU governance recently applied to the fight against social exclusion may provide states with proper EU guidance in matters of identity-based policies.

Abstract:
In European legal discourse, the old public/private divide is experiencing a revival and a transformation. Member States used to claim autonomy in private law matters. Now private law is subsumed into a functionalist logic and can presumptively be harmonized if so demanded by the goal of market integration. States or local constituencies can only resist harmonization by highlighting the connection between their private laws and those public matters still immune from Europeanization. Property law can effectively illustrate this phenomenon. The written pledge of non-interference with States' property systems, restated both in the TEC and in the draft Constitution, cannot be taken at face value, given the plethora of supra-national inroads into this field. But it performs the essential rhetorical function of reassuring national law makers that Europe will pay special attention to sovereign choices when harmonizing those areas of private law which, like property, harbor an obvious core of constitutional values.

Abstract:
In European legal discourse, the old public/private divide is experiencing a revival and a transformation. Member States used to claim autonomy in private law matters. Now private law is subsumed into a functionalist logic and can presumptively be harmonised if so demanded by the goal of market integration. States or local constituencies can only resist harmonisation by highlighting the connection between their private laws and those 'public' matters still immune from Europeanisation. Property law can effectively illustrate this phenomenon. The written pledge of non-interference with States' property systems, restated both in the TEC and in the draft Constitution, cannot be taken at face value, given the plethora of supra-national inroads into this field. But it performs the essential rhetorical function of reassuring national law makers that Europe will pay special attention to sovereign choices when harmonising those areas of private law which, like property, harbour an obvious core of constitutional values.