European Private Law and the Comparative Method
Jan M. Smits
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI); University of Helsinki - Center of Excellence in Foundations of European Law and Polity
January 18, 2011
THE CAMBRIDGE COMPANION TO EUROPEAN UNION PRIVATE LAW, Christian Twigg-Flessner, ed., pp. 33-43, Cambridge University Press, Cambridge 2010
European Private Law has now firmly established itself as a new field of academic study: with its own professorial chairs, academic journals, annual conferences and debate, European private law has turned into a real ‘industry.’ The purpose of this contribution is to examine the relationship between this field and the much older discipline of comparative law. Although it is often assumed that there is a close relationship between the two fields, it is not very clear what this relationship consists of exactly. At first sight, one is inclined to say that comparison among the 28 European jurisdictions is the essential tool for establishing a uniform private law for Europe. However, careful scrutiny of the European legislation in place and of the reasoning of the European Court of Justice may reveal a more nuanced picture. This contribution considers in particular the relationship between a) legal harmonisation and the comparative method in general; b) the role of the comparative method in European legislation; c) the role of the comparative method in the case law of the Court of Justice of the European Union; and d) the role of the comparative method in legal scholarship.It turns out that the relationship between the creation of a common private law for Europe and the comparative method is not as straightforward as is often assumed.
Number of Pages in PDF File: 11
Keywords: European private law, Comparative method, Harmonisation, Directives, Court of Justice EU, Principles
JEL Classification: K00Accepted Paper Series
Date posted: April 10, 2010 ; Last revised: January 20, 2011
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