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Cafaggi, Fabrizio; Muir-Watt, Horatia --- "Introduction" [2008] ELECD 188; in Cafaggi, Fabrizio; Muir Watt, Horatia (eds), "Making European Private Law" (Edward Elgar Publishing, 2008)

Book Title: Making European Private Law

Editor(s): Cafaggi, Fabrizio; Muir Watt, Horatia

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847201980

Section: Chapter 1

Section Title: Introduction

Author(s): Cafaggi, Fabrizio; Muir-Watt, Horatia

Number of pages: 36

Extract:

1. Introduction
Fabrizio Cafaggi and Horatia Muir-Watt

1. FRAMING THE QUESTIONS
The current debate on the desirability and modes of formation of European
Private Law (hereinafter `EPL') is engaging a wide number of scholars and
institutions. Current work concerns the search for a common core of EPL, the
rationalisation of the acquis communautaire, the design of a European Civil
Code, the advantages and disadvantages of codification of private law or of
single subject matters.1 These ongoing projects raise at least two related ques-
tions concerning the challenges to Europeanisation of private law: first, what
is the, often implicit, definition of private law underlying the debate about the
creation of EPL? Second, does the process of the creation of EPL require a
particular type of governance structure?

Private law definition ­ Private law operates through public legislation as well
as private law-making. The former is ever more the combination of hard and soft
law while the latter translates into codes of conduct, guidelines, principles and
private regulations. European private law, marked by its regulatory function,
encompasses both mandatory and default rules.2 Both in relation to legislation
and adjudication the potential strategic differentiation between the two sets of
rules has not yet been fully analysed.3 Can we separate private law legislation


1 See Grundmann S. and M. Schauer (2006), The architecture of European
codes and contract law, The Hague: Kluwer; Hesselink M. (2006), `Introduction', in
Hesselink, M. (ed.), The politics of a European civil code, The Hague: Kluwer, ...