What Do We Mean when We Say ’Folklore’? Cultural and Axiological Diversities as a Limit for a European Private Law

Abstract

Cultural and axiological diversities between legal orders are considered to be a limit for the unification or harmonization of European private law. This assumption, as a starting point, is analysed in relation with three different cases or tests: same-sex marriages in family law, ?real seat theory? versus ?incorporation theory? in company law, and ?playing at killing people? against human dignity in constitutional law. The diagnosis confirms the hypothesis: legal divergences due to various cultural or axiological options result in restrictions on the free movement of persons, goods or services within the internal market. As European law often justifies these restrictions, they should be removed through ?reactive? harmonization. Nevertheless, the proportionality principle can exclude this possibility, simply because of the scope of some cultural or axiological differences. Finally, this understanding is applied to contractual law in order to show that there is no significant exception in this area. Accordingly, any attempt to unify contractual law must take into account the cultural and axiological diversities and try to minimize their effects, but also accept the implicit limits by implementing soft and more imaginative proposals.