Bridging the gap(s): The importance of private law theory in the EU context

Abstract

This article advocates for applying private law theories originating in the common law to EU private law. It argues that those theories can enhance the coherence and workability of EU private law, which currently lacks a comprehensive doctrinal structure. They can also help EU private law overcome the prevailing but flawed functionalist approach that suggests that EU private law primarily serves as a policy tool to achieve specific goals.The article unfolds in three parts: first, it compares the development of civil and common law private law theory, highlighting why thick private law theory only developed in common law jurisdictions and arguing that the same reasons apply to EU private law. Second, it contends that common law theories can enrich the discourse on EU private law, emphasising the need to consider both EU and national private law norms together. Lastly, it proposes that the common law-derived New Private Law theory offers a promising approach to interpreting EU private law, reconciling interpersonal aspects with instrumental objectives. This integration could foster a common language for discussing EU private law, akin to Roman law’s historical role. The paper encourages scholarly debate and adaptation of these theories to local conditions, aiming to bridge the gap between private law theory in common and civil law jurisdictions.