文档介绍：This article was previously published in:
Maastricht Journal of European parative Law 5 (1998), p. 328-340.
A European Private Law as a Mixed Legal System
Towards a mune through the Free Movement of Legal Rules
Jan Smits*
1. How to Arrive at a European Private Law?
The most striking development in private law over the past decade is undoubtedly its
Europeanization. The desire to achieve a European private law has, apart from the
much longer existing Directives legislation, resulted in an avalanche of scholarly
publications,1 a dozen or so new journals,2 strong political stands by the various
national and ans and texts which are intended to serve as a first step
towards a European mune of private law. If the tone set in these writings were
all to go on, we would be inclined to think that the realization of a European private
law may be just a matter of rules or principles drafted by mittees or
institutes. No longer the question as to whether a European private law is desirable, or
even as to how such a law can be achieved, but rather the question as to when it will be
realized, seems to prevail in many publications.
In this article, the desirability of a European private law is assumed. Its practical
significance is evident: as a justification, it has been pointed out that if a proper internal
European market is to be created, a uniform private law is a This purely
economic motive is usually exemplified by the situations in Italy and Germany in 1866
and 1900, respectively; in these countries, unification of the law came about after
political and economic It is then said that integration and unification must
go hand in hand. However, it is not just practical interest which makes unification
necessary; it is also challenging academically to achieve a uniform private law which is
capable of removing the alleged contradistinctions between Civil Law mon
Law.
What is disputed in this article, however, is the way in