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La doctrine et la (re)construction d'un droit privé européen

Abstract : European private law is gradually built, both as a branch of law, especially through EU legal instruments, and as a legal discipline, i.e. as a legal knowledge, a jurisprudence. Legal scholarship plays a fundamental part in this construction (or reconstruction when medieval jus commune is regarded as a precedent). In response to the fragmentary and sectoral approach of EU legal instruments concerning private law, legal scholarship has drawn up several legal drafts; these drafts aim to build the European private law as a complete and consistent branch of law. The published drafts include general contract law (Principles of European Contract Law, edited by O. Lando), tort law (Principles of European Tort Law), and even the whole patrimonial law (Draft Common Frame of Reference, edited by C. von Bar). The legal scholarship also plays a part in the diffusion of concepts in different legal systems. This diffusion is enhanced by the emergence of books, lectures, degrees in European private law, even if this law remains very incomplete. Whichever way European private law is understood, legal scholarship contributes in an essential manner. The omnipresence of the legal scholarship leads to question its role in the construction, if not reconstruction, of a European private law. This study shows that whereas legal scholarship claims to be a source of law mainly through the production of legal drafts, legal scholarship in fact goes beyond a mere advisory role: its unacknowledged goal is to steer the production of written rules in European private law. But, beyond the drafting and the promotion of model rules, legal scholarship can play a more powerful role, although less conspicuous. Its role in the presentation, analysis and diffusion of the law allows legal scholarship to europeanise the way private law is thought. Thus, legal literature contributes to the emergence of a European private law as a discipline. By conditioning the way the law is perceived, legal scholarship shapes the legal knowledge; as such, its involvement in the Europeanisation of jurisprudence is valuable.
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https://halshs.archives-ouvertes.fr/halshs-01419285
Contributor : Véronique Lacroix Connect in order to contact the contributor
Submitted on : Monday, December 19, 2016 - 11:11:26 AM
Last modification on : Wednesday, November 3, 2021 - 9:10:00 AM

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  • HAL Id : halshs-01419285, version 1

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Vincent Rivollier. La doctrine et la (re)construction d'un droit privé européen. Institut Universitaire Varenne, 2016, Collection de thèses, 978-2-37032-105-3. ⟨halshs-01419285⟩

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