THE STRUCTURE OF THE NEW EUROPEAN PRIVATELAW the European level in a European Civil Code, and a public part, to be regulated on the ational (and maybe sometimes the European or another international)level. In addition, such an approach would also be un-European: the European legislator has not demonstrated any great sensitiv ity to the public/private divide. On the contrary the eu has consistently adopted a functional approach to the aw, in which private law as much as public law is instrumental to the political aims which the EU means to achieve by way of its directives and regulations. The difference between the various Directorates-General of the European Commission seems to have been more detem inant of the structure of European private aw than a dogmatic, esthetical political dedication to the private/public divide As said, private aw is usually defined as the law which governs reltionships between citizens as opposed to public law, which is the law that deals with the relationships between citizens and the state, or among state institutions. This definition is quite descriptive. However, there is another recurrent definition of private law which is much more political. In this definition private law is the law relating to the private area which is free from State intervention In the latter view the only function of private law is allocation: suum cuique tribuere In that view private law has an intemal logic of its own which is politically neutral and is only concemed with giv ing every person what she or he is entitled to. Especially, private aw in that view has no distributionist nor any other paternalistic function: rather it is held that private aw should not be instrumenta lised for political aims. In that view the main pillars of private law are absolute property, freedom of contract and fault liability This view has been forcefully attacked, especially in the United States, by the Sociological, Realist and Critical Legal Studies movements. They challenged the idea that a bsolute property, freedom of contract, fault liability and party autonomy were the natural, apolitical foundations of private law, and they showed that this view of private law was instead closely linked to a laissez-faire Liberal( Conservative) view of the economy and society at large. Instead, they argued that there is no pre-legal entitlement and that all law is public law%. This second definition does indeed seem to be untenable in Europe today. There is no reason to accept any pre-legalright to property or binding force of contract or limitation of liability to fault uld by the courts. Even if( variant of n law or another, that people have pre-legal rights to property, that promises(or agreements)should be binding or that no -one should be liable except when she or he has caused damage by her or his fault, as soon as one is of the opinion that the State should protect and enforce such a right with the aid of the law, the State shall do so only to the extent and in the way agreed upon democratically(including the democratically accepted rigid constitutions and international treaties which protect See further my The New European Legal Culture, p. 37ff Compare Daniela Caruso, The Missing View of the Cathedral: The Private Law Paradigm of European Legal Integration 3 European Law oumal(1997) pp 3-32 See M. D.A. FREEMAN, Lbyd s Introduction to Jurisprudence, 6th ed, Sweet Maxwell London 1994, p. 669, and DUNCAN KENNEDY, A Critique of Adjudication ffin de siecle/, Cambrid Massachusetts 1997. both with further references. See MoRTON JHORWITZ, The Transformation of American Law 1870-1960: The Crisis ofTHE STRUCTURE OF THE NEW EUROPEAN PRIVATE LAW 3 the European level in a European Civil Code, and a public part, to be regulated on the national (and maybe sometimes the European or another international) level. In addition, such an approach would also be un-European: the European legislator has not demonstrated any great sensitivity to the public/private divide. On the contrary, the EU has consistently adopted a functional approach to the law, in which private law as much as public law is instrumental to the political aims which the EU means to achieve by way of its directives and regulations6 . The difference between the various Directorates-General of the European Commission seems to have been more determinant of the structure of European private law than a dogmatic, esthetical or political dedication to the private/public divide. As said, private law is usually defined as the law which governs relationships between citizens as opposed to public law, which is the law that deals with the relationships between citizens and the state, or among state institutions. This definition is quite descriptive. However, there is another recurrent definition of private law which is much more politica l. In this definition private law is the law relating to the private area which is free from State intervention. In the latter view the only function of private law is allocation: suum cuique tribuere. In that view private law has an internal logic of its own which is politically neutral and is only concerned with giving every person what she or he is entitled to7 . Especially, private law in that view has no distributionist nor any other paternalistic function: rather it is held that private law should not be instrumentalised for political aims. In that view the main pillars of private law are absolute property, freedom of contract and fault liability. This view has been forcefully attacked, especially in the United States, by the Sociological, Realist and Critical Legal Studies movements8 . They challenged the idea that absolute property, freedom of contract, fault liability and party autonomy were the natural, apolitical foundations of private law, and they showed that this view of private law was instead closely linked to a laissez-faire Liberal (Conservative) view of the economy and society at large. Instead, they argued that there is no pre-legal entitlement and that all law is public law9 . This second definition does indeed seem to be untenable in Europe today. There is no reason to accept any pre-legal right to property or binding force of contract or limitation of liability to fault, which should be protected by the courts. Even if one accepts, in one variant of natural law or another, that people have pre-legal rights to property, that promises (or agreements) should be binding or that no -one should be liable except when she or he has caused damage by her or his fault, as soon as one is of the opinion that the State should protect and enforce such a right with the aid of the law, the State shall do so only to the extent and in the way agreed upon democratically (including the democratically accepted rigid constitutions and international treaties which protect 6. See further my The New European Legal Culture, p. 37 ff. 7. Compare Daniela Caruso, The Missing View of the Cathedral: The Private Law Paradigm of European Legal Integration , 3 European Law Journal (1997), pp. 3-32. 8. See M.D.A. FREEMAN, Lloyd s Introduction to Jurisprudence, 6th ed., Sweet & Maxwell, London 1994, p. 669, and DUNCAN KENNEDY, A Critique of Adjudication {fin de siècle}, Cambridge Massachusetts 1997, both with further references. 9. See MORTON J HORWITZ, The Transformation of American Law 1870-1960; The Crisis of Legal Orthodoxy, New York/Oxford 1992