Europe-building through private law Lessons from constitutional theory

Questioning the link between private law and the nation-state that is implied by nationalist perceptions of the law, this paper seeks to find support for a transnational (Europeanist,constitutional-patriotist or cosmopolitan) view on private law in constitutional theory. Normative theories of constitutionalism have a bearing on questions of European private law insofar as private legal relationships are affected by the division of legal competences and the deliberation of values in the EU’s legal order. It is submitted that of three types of normative constitutional theories (constitutionalism, systemic pluralism and constitutional pluralism) a constitutional-pluralist version can provide the best framework for supporting a European private law that overcomes nationalist objections. In this context, particular attention is paid to the clarification of the relationship between the recently proposed Common European Sales Law (CESL) and national regimes of sales law. It is suggested that a constitutional-pluralist model can accommodate suborders of private law so as to relate them to the imagination of a legal-political community on the level of the EU (Euronationalist view) or to a political community based on universal values that transcend the nation-state constitutional-patriotist view or cosmopolitan view). A conceptual connection between the fields of European private law and constitutional law is then found in fundamental rights, which define the allocation of value choices among judicial, political and market processes. Given this nature of rights, the EU Charter of Fundamental Rights may guide the articulation of principles underlying the CESL and can facilitate an institutional dialogue aimed at resolving conflicts between different orders of private law in Europe.