Private Law Discourse and Scholarship in the Wake of the Europeanisation of Private Law
In M. Kenny & J. Devenney (Eds.), THE TRANSFORMATION OF EUROPEAN PRIVATE LAW: HARMONISATION, CONSOLIDATION, CODIFICATION OR CHAOS? pp. 148-171, Cambridge: Cambridge University Press, 2014
29 Pages Posted: 6 Aug 2014 Last revised: 20 May 2017
Date Written: November 7, 2012
In its approach to the regulation of the internal market, the EU has never accepted the traditional conception of private law as it has evolved in national legal systems. Whilst national private laws have been primarily concerned with justice between market participants rather than the pursuance of specific public goals, the EU has viewed private law as an instrument for achieving the collective objectives of European integration. This contribution explores the implications of the on-going process of the Europeanisation of private law for the traditional private law discourse in national legal systems and the role of private law scholarship. My argument, in a nutshell, is that the Europeanisation of private law reinforces the role of policy considerations related to the common good within a private law discourse, not only in areas that fall within the scope of EU law but also far beyond, further putting the traditional idea of private law under pressure; whilst public goals pursued by the EU are often compatible with the traditional private law concerns of doing justice between the parties, at times the two may come into conflict with each other. In its turn, the tendency towards the instrumentalisation of private law presents new challenges for the private law scholarship, strengthening the need for legal scholars to play a more pro-active role in shaping (European) private law than in has played so far.
Keywords: EU law, private law, Europeanisation of private law, instrumentalisation of private law, legal scholarship
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