The general theme of this conference - legal change and legal scholarship across Europe - reflects a growing interest of British academic lawyers in the increasing European dimension of law. Indeed, the new dynamics of the unification movement is one of the most salient features of the legal development of the recent past. It has many aspects, including EC legislation and the drafting of restatements and of general principles of law, which I will shed some light upon in the first part of my paper. I will then venture an explanation for the renascence and the new appeal of the unification movement (section II) before turning to a more specific discussion of the hamonisation of private law in Europe (section III), the significance of general principles of law for its unification (section IV), and the restatements of contract law and their role in the process of integration (section V). For the sake of clarity, I should like to premise that harmonisation and unification, although technically having different meanings, will be used interchangeably here.

This paper advances and defends a ‘constitutionalist’ perspective on the Europeanisation of private law. The first introductory section places the Europeanisation of private law in relation to current debates and then proceeds, in section II, to its practical implications with the help of identifying a significant cluster of conflict. The main part of this paper, however, is concerned with the theoretical issues of the analytical background and normative basis of the constitutionalist perspective.

To this very day, public law scholars seem to be concerned about the identity of their area of scientific interest. Many of them in many European legal cultures routinely labour, some even agonise over distinguishing public law from what appears to be a securely established field of private law. More than 20 years ago, 20 to 30 variations of the public/private-theme, usually elevated to the rank of ‘theories’, could be counted in German scholarship alone, none of them satisfying the desire to clarify, once and for all, the nature, purpose, and scope of public law.

In this vein, law students are required to discuss at least the major demarcation theories so as, for instance, to establish jurisdiction of administrative courts, liability of the state, or the scope of constitutional rights.

In Hungary, a comprehensive amendment to the 1949 Constitution took effect on 23 October 1989. According to the new preamble of the considerably amended Constitution, the revision was needed ‘in order to promote the peaceful political transition into the rule of law realizing the multiparty system, parliamentary democracy and social market economy’. This amendment changed not only the state organisation, but also the regulation of human rights.

The intention of distancing itself from the historical period of the past 40 years is expressed in para 1 of the amended Constitution, which proclaims that Hungary is a republic. With this, Hungarian constitution-making went back to a number of legal institutions incorporated in Act I of 1946 which is on the state form of Hungary adopted by the National Assembly, formed after the frst free elections after the Second World War.

Legal doctrine has two aims: describing and systematising the law. The description of currently valid law within a given legal system is the most visible and, from a quantitative point of view, the most important task for legal doctrine. From a qualitative point of view, however, systematisation of the law is by far its most important task. Systematisation is the construction of a conceptual framework of the law, which is a necessary basis for any legal rule and for any legal reasoning. Systematisation presupposes a description of the rules, principles, concepts, etc, which are to be systematised. But description of the rules is impossible without the conceptual framework that the systematisation of the law offers. Even the law itself is based on this conceptual framework. Codifications, such as the Code Napoléon or the German Bürgerliches Gesetzbuch, were made possible because of the centuries-long preparatory work of legal doctrine.

All the efforts of human reason tend to the elimination of [the other]. The other does not exist: such is rational faith, the incurable belief of human reason. Identity = reality, as if, in the end, everything must absolutely and necessarily be one and the same. But, the other refuses to disappear: it subsists, it persists; it is the hard bone on which reason breaks its teeth. [There is] what might be called the incurable otherness from which oneness must always suffer.