The General Transformations of Private Law Since Léon Duguit

Abstract

Abstract: This contribution compares the transformations taking place in European private law in recent years to the transformations first described one century ago in French legal scholarship confronted with the interpretation of the French Code Civil in a deeply changed social context. That scholarship, epitomised by personalities like Leon Duguit, challenged the dominant legal formalism, with its emphasis on the subjective right, insisting instead that private law and the state perform social functions. Duguit’s legal functionalism remains a useful lens through which to examine contemporary transformations of private law and the state in an EU context. In fact, contemporary law is characterised by new economic, technological, and societal processes which produce an increased level of complexity linked to new ‘transformations’ of private law. This contribution thus highlights the characteristics of those transformations separated by a century of legal evolution attempting to trace them in the specific area of European private law. A considerable difference between ‘then’ and ‘now’ is that those processes of transformation that Duguit noted now take place beyond a territorial defined state in the context of market-building in a supranational arena. This leads to a greater, and unimagined, blurring if not bypassing of the public-private divide. Duguit’s ‘legal theory without sovereignty’ well describes these developments but is now under pressure from renewed idealisms.