Chapter 14: Constitutionalisation of Private Law
Anna Lytvynyuk* INTRODUCTION A division between public and private law seems to have always been there and is considered to be functionally and scientifically justified. Many legal orders, like, for example, the German one, have a long-lasting civil law tradition, the triumph of which is naturally a Civil Code.1 Emphasising the importance of the civil law culture, Gardbaum describes the Civil Code of Germany as ‘. . . the growing glory of the legal system, a definitive and authoritative written document with a cultural status and prestige not dissimilar to that of the Constitution in the United States’ (Gardbaum, 2003: 387, 403). In almost all the countries of the continental legal system2 a lawyer specialises in either public law or private law. As far as the theory of law is concerned, a professor of constitutional law will hardly teach any of the fields of private law. As Kumm has put it, ‘[t]he idea that a public lawyer, using concepts and categories of a public law discipline, could intrude on the domain of civilian expertise, borders on the preposterous.’ The distinction between public law and private law, Kumm continues, ‘. . . is therefore deeply linked to turf battles over traditional disciplinary boundaries and prestige’ (Kumm, 2006: 360). Notwithstanding such a deeply routed tradition, however, nowadays the concept of ‘constitutionalisation’ of private law is becoming more intensely debated both by comparative civil lawyers and public lawyers. The following chapter will present the debate of the so-called ‘constitutionalisation’ of private law. It will show that by the...
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