Sur la légitimité d'européaniser le droit privé. Plaidoyer pour une approche procédurale

There are good reasons to expect that the process of European integration might bring about a renaissance of comparative law and private international law, the two disciplines, in which Herbert Bernstein had excelled in the New and the Old World. To be sure, Europe’s legal systems must respond to processes of economic and political integration. It seems nevertheless quite unrealistic to expect from the European Union any comprehensive harmonisation of private law. Europe’s systems of private law are deeply entwined in the economic and political histories of the polities which they order and to which they owe their legitimacy. Europe’s identity is defined by the diversity of its legal heritage. Should not deepened comparative studies prepare and accompany the search for a Europeanised private law system; and is it not the very vocation of private international law to organise constructive responses to legal diversity? Pertinent efforts have been undertaken and are under way. And yet, the Europeanisation process, so this essay argues, follows a logic of its own, which none of our inherited legal disciplines seems able to cope with. Three difficulties will be discussed. One is inherent in very general developments of "post-classical private law, in particular its linkages with regulatory and distributive policies opening to social values human rights. Comparative law has often furthered, international adapted this (in Germany) so-called materialisation process. Europeanisation, however, adds challenging new dimensions. They are inherent the multi-level structures of European polity hence inevitable. interventions into general (the codified systems continental Europe common UK) have so far been quite marginal. But very intensively comprehensively re-organised frameworks transactions whereas welfare state institutions which relations embedded remained national domains. Europeansation is therefore too a large degree about restructuring (Europeanised) environment embeddedness institutions. Europeanisation affects dimension through freedoms it grants citizens. transformative discipline. requires respect for principles prescription imposes realms enumerated competences legislature. cannot provide comprehensive responses quests change. only selectively. process change incremental essay does not try present as building system rules principles. rather presents explores patterns legal three cases exemplary importance. will become apparent, neither nor or can lay claim exclusive leadership generating task discipline normative guidance operation within governance that