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Lytvynyuk, Anna --- "Constitutionalisation of Private Law" [2010] ELECD 125; in Bakardjieva Engelbrekt, Antonina; Nergelius, Joakim (eds), "New Directions in Comparative Law" (Edward Elgar Publishing, 2010)

Book Title: New Directions in Comparative Law

Editor(s): Bakardjieva Engelbrekt, Antonina; Nergelius, Joakim

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848443181

Section: Chapter 14

Section Title: Constitutionalisation of Private Law

Author(s): Lytvynyuk, Anna

Number of pages: 12

Extract:

14. Constitutionalisation of private law
Anna Lytvynyuk*

INTRODUCTION
A division between public and private law seems to have always been there
and is considered to be functionally and scientifically justified. Many legal
orders, like, for example, the German one, have a long-lasting civil law tradi-
tion, the triumph of which is naturally a Civil Code.1 Emphasising the impor-
tance of the civil law culture, Gardbaum describes the Civil Code of Germany
as `. . . the growing glory of the legal system, a definitive and authoritative
written document with a cultural status and prestige not dissimilar to that of
the Constitution in the United States' (Gardbaum, 2003: 387, 403).
In almost all the countries of the continental legal system2 a lawyer
specialises in either public law or private law. As far as the theory of law is
concerned, a professor of constitutional law will hardly teach any of the fields
of private law. As Kumm has put it, `[t]he idea that a public lawyer, using
concepts and categories of a public law discipline, could intrude on the domain
of civilian expertise, borders on the preposterous.' The distinction between
public law and private law, Kumm continues, `. . . is therefore deeply linked
to turf battles over traditional disciplinary boundaries and prestige' (Kumm,
2006: 360).
Notwithstanding such a deeply routed tradition, however, nowadays the
concept of `constitutionalisation' of private law is becoming more intensely
debated both by comparative civil lawyers and public lawyers. The following
chapter will present the debate of the so-called ` ...