European Private Law after the Common Frame of Reference
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European Private Law after the Common Frame of Reference

Edited by Hans-W. Micklitz and Fabrizio Cafaggi

This book paves the way for, and initiates, the second-generation of research in European private law subsequent to the Draft Common Frame of Reference (DCFR) needed for the 21st century. The book gives a voice to the growing dissatisfaction in academic discourse that the DCFR, as it stands in 2009, does not actually represent the condensed available knowledge on the possible future of European private law. The contributions in this book focus on the legitimacy of law making through academics both now and in the future, and on the possible conceptual choices which will affect the future of European private law. Drawing on experience gained from the DCFR the authors advocate the competition of ideas and concepts.
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Chapter 4: The Public/Private Divide in European Law

Norbert Reich


* Norbert Reich I. CAN WE TALK OF A ‘EUROPEAN PRIVATE LAW’? When discussing a ‘divide’ between ‘public and private’ in European law, we seem to suggest that there exists something like the classical division between ‘public’ and ‘private law’, the first referring to the relationship between citizens and the state, the second to those between (autonomous?) citizens. ‘Publicum ius quod at statum rei Romanae spectat, privatum quod at singularum utilatem’, as the Roman jurist Ulpian said.1 This model is based on a separation between the state area where political prerogatives prevail, and the private sphere where autonomous persons interact according to their own preferences, a separation which permeates, at least in the continental tradition, the division of legal disciplines and court competences. This classical model does not fit well with European, or more specifically EEC/EC/EU law. We may not know what the EEC/EC/EU ‘is’– it may be a ‘Staatenverbund’, in the terminology of the German Bundesverfassungsgericht,2 a Union of States and Peoples3 ‘united in diversity’, as the failed draft Constitution of 2004 formulated it, an institution sui generis, including certain * My thanks go to Prof. Hans-W. Micklitz, EUI Florence, and to Prof. James Gordley, Tulane University Law School, LA, USA for critical comments on an earlier draft. Responsibility remains as usual with the author. An earlier draft was presented at the 14th General Meeting of the Common Core Group, Turin, 11 July 2008. 1 Ulp. Dig. 1, 1, 1, 2, cited by Larenz and Wolf, Allgemeiner Teil des B...

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