fundamental rights including private property ) Therefore, property is protected promises (agreements)are bindingand people are liable for their torts only when and to the extent that the law says so( Constitutional lawand private law). In that sense all law, including private law, is indeed public law there is no area of the law which free from paternalistic, distributionist and other functional and instrumenta intervention by the State. Also in practice it has become obvious in the course of the 20th century that large parts of private la ware subject to State intervention, which is worker s, tenant s and consumer protection in the special part, whereas objective causation rules, the doctrines of abuse of right and of good faith in the general part have similar effects). Moreover, as said, the whole acquis communautaire is Instrumental, also in the case of private law. These developments raise the question whether it still makes sense to uphold a sharp distinction between private and public law. Moreover, within the English legal system there has never been a strong tradition of distinguishing private law and public law, although some scholrs- who incidenta lly share an interest in Civil Law have recently made use of this term inology. Therefore, it may be worthwhile to go ahead with the functional and piecemealapproach which the European legislator has adopted and to address functional fields of the law rather than to embrace the grand idea of includingall private law within a civil code, and thus reviving a distinction which does not seem desirable neither from a political nor from a practical perspective. Instead, it may be adv isa ble to enact one or more functional European codes, for example in the area of distribution law, company law, or la bour law Civil Law. Commercial Law. Consumer Law Another instance of the fragmentation of private law is not new at all. Indeed, it has been present from the first codif ications the div ision of private law according to the status of the persons involved In many European countries different(or additional) rules apply depending on whether the parties are ordinary citizens or merchants. In addition, more recently a newcategory has developed: the consumer In the first wave of codifications most continental European legal systems dopted both a civil code and a commercial code. However, since the first half of the Oth century the significance of this distinction has gradually decreased. And some countries, notably Italy(1942)and the Netherlands(1992), officially abolished the distinction on the occasion of the implementation of their new civil codes 2 Interestingly, however, during the ast de f the 20th counter-development started to arise asa result of the birth of consumer aw. Thus See e.g. PETER BIRKS(ED h English Priate la, Oxford 2000. Moreover, Professor Ewan McKendrick occupies a Chair in English Private Law at Oxford. 1 ompare PIERRE LEGRAND, Against a European Civil Code, MLR [VoL 60]199744-62 In the Nether lands the distinctions between hooplieden and other persons, and between daden koophandel and other acts was abolished as early as nm 1934. See RJ.Q. KlOMP, Opkomst en degang nam het handelsrecht: verde aard en de positie van hethandelsrecht, in het bijanderin verhouding tot het burgerljk recht n Nederland in de negentiende en twintigste een, Nijmegen 1998p.165HESSELINK 4 fundamental rights including private property). Therefore, property is protected, promises (agreements) are binding and people are liable for their torts only when and to the extent that the law says so (Constitutional law and private law). In that sense all law, including private law, is indeed public law: there is no area of the law which is free from paternalistic, distributionist and other functional and instrumental intervention by the State. Also in practice it has become obvious in the course of the 20th century that large parts of private law are subject to State intervention, which is driven by political concerns many of which are distributionist (strict liability, worker s, tenant s and consumer protection in the special part, whereas objective causation rules, the doctrines of abuse of right and of good faith in the general part have similar effects). Moreover, as said, the whole acquis communautaire is instrumental, also in the case of private law. These developments raise the question whether it still makes sense to uphold a sharp distinction between private and public law. Moreover, within the English legal system there has never been a strong tradition of distinguishing private law and public law, although some scholars - who incidentally share an interest in Civil Law - have recently made use of this terminology10. Therefore, it may be worthwhile to go ahead with the functional and piecemeal approach which the European legislator has adopted and to address functional fields of the law rather than to embrace the grand idea of including all private law within a civil code11, and thus reviving a distinction which does not seem desirable neither from a political nor from a practical perspective. Instead, it may be advisable to enact one or more functional European codes, for example in the area of distribution law, company law, or labour law. 4 Civil Law, Commercial Law, Consumer Law Another instance of the fragmentation of private law is not new at all. Indeed, it has been present from the first codifications: the division of private law according to the status of the persons involved. In many European countries different (or additional) rules apply depending on whether the parties are ordinary citizens or merchants. In addition, more recently a new category has developed: the consumer. In the first wave of codifications most continental European legal systems adopted both a civil code and a commercial code. However, since the first half of the 20th century the significance of this distinction has gradually decreased. And some countries, notably Italy (1942) and the Netherlands (1992), officially abolished the distinction on the occasion of the implementation of their new civil codes 12 . Interestingly, however, during the last decades of the 20th century a counter-development started to arise as a result of the birth of consumer law . Thus 10. See e.g. PETER BIRKS (ED.), English Private Law, Oxford 2000. Moreover, Professor Ewan McKendrick occupies a Chair in English Private Law at Oxford. 11. Compare PIERRE LEGRAND, Against a European Civil Code , MLR [Vol. 60] 1997 44-62. 12. In the Netherlands the distinctions between kooplieden and other persons, and between daden van koophandel and other acts was abolished as early as in 1934. See R.J.Q. KLOMP, Opkomst en ondergang van het handelsrecht : over de aard en de positie van het handelsrecht, in het bijzonder in verhouding tot het burgerlijk recht, in Nederland in de negentiende en twintigste eeuw, Nijmegen 1998,p. 165