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.

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Daniela Caruso Contact Information:

danielac@bu.edu
Boston University School of Law
765 Commonwealth Ave
Boston, MA 02215
USA
(617) 353-7024

SSRN Site:

http://ssrn.com/abstract=605146

Presentation and Publication Information:

There is only an abstract on this site. The final article can be found at:
European Law Journal, Vol. 10, No. 6, pp. 751-765, November 2004.

The European Law Journal's homepage URL is:
http://www.blackwellpublishing.com/journal.asp?ref=1351-5993

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