Taking Comparative Law Seriously: Europe's Private Law and the Poverty of the Orthodoxy

The accumulation of comparative legal studies on the Europeanization of private law is characterized by a "knowledge gap." Rather than understanding Europeanization as both law-in-action and lawin-context, in line with classical comparative law teachings, comparatists who specialize in private law Europeanization focus on aspects of lesser importance, such as rule-centered narratives. Writing the conventional way simply broadens this gap. A change of direction in scholarship is required: an engagement with the developments associated with law-in-action and law-in-context that define Europeanization and that have been neglected so far.

"Considerar a historia...como um processo produtor de entitades historicas e nao, como 6 habitual, um processo que supoe, como algo previo, a existencia das referidas entitades."**

"God is in the detail."***

This article proposes to explore the fabric of legal thought on the Europeanization of private law, the body of knowledge that has emerged out of more than two decades of comparative legal work towards the objective of Europeanization. The article argues that the accumulation of these studies is directly proportional to a "knowledge gap." Comparatists fail to trace developments that characterize the path of private law towards Europeanization. Rather than understanding Europeanization as both law-in-action and law-in-context, in line with classical comparative law teachings, they focus on aspects of lesser importance, such as rule-centered narratives.' Writing the conventional way simply broadens this gap. The chief conclusion is that comparatists who specialize in private law Europeanization (hereinafter referred to as orthodox comparatists or scholars)2 should abandon the canonical approach and engage with the important dimensions of Europeanization that have been neglected so far.

The investigations below represent a decoupling of received ideas. I highlight a discrepancy between ongoing processes of "Europeanization" (by which I mean the development and management of a corpus of posited norms around the E.U. institutional structure) and scholarly reconstruction and discernment of such processes. What follows is, primarily, an enumeration of idola (the Latin word for false representations of "reality" is more than appropriate here) to which the reader's attention is drawn: Part I briefly analyzes the orthodox comparatist view of Europe's private law in order to recall the propositions typically associated with it. In Part II, an argument is advanced towards demonstrating the orthodox propositions as,largely fallacious: they fail to embody key dimensions of the development of private law in the context of the Europeanization processes that must be considered for our reconstruction of the phenomenon not to be artificial. In conclusion, in Part III, I argue for a bold renovation of comparative analyses, with a view to restoring consideration of the dimensions that really matter but that have remained largely ignored and altogether removed from the public debate. At this concluding stage, some major implications of the line of enquiry pursued will become clear. First, to unearth facets of artificiality in the literature implies subjecting. to scrutiny various "half-truths" that are in vogue, with a view to widening our understanding of Europeanization processes of relevance to the major area of public life labeled "private law." Second, it also implies taking up the laborious task of deconstructing and demystifying a powerful legal-cultural venture that, on rather questionable legal comparative grounds, monopolizes the discourse on denationalization processes relevant to private law. Let me start with a description of the orthodox comparative analyses.(3)