Harmonization through Principles

When I wrote about the Common Core project, I mentioned that it was strictly descriptive without any intention to aid harmonizing the laws of Europe. There are, however, also some comparative legal efforts that strive to foster cross-border uniformity of laws in order to aid transnational commerce. These efforts, again, are of an academical nature, i.e. detached from any political body or parties. Their goal, however, is to provide such political bodies with a working basis that will eventually lead to harmonization of laws. On the European level, two recent (and subsequent) groups are worth to be mentioned: the Commission on European Contract Law (Lando Commission) and the Study Group on a European Civil Code (SGEC).

The Lando Commission set out to draft uniform principles of contract law. The first commission under the chairmanship of Ole Lando started its work in 1982 and published the first set of principles on performance, non-performance and remedies for non-performance in 1995. A second commission (established in 1992) focused on contract formation, interpretation and validity as well as on agency. It published its conclusions in 1999.

The Study Group on a European Civil Code, established in 1997, emanated from the Lando Commission. It had a broader scope than the Lando Commission focusing on patrimonial law which includes contracts, non-contractual obligations and movable property. Contentious areas such as family law have been left untouched. The SEGC published its Draft Common Frame of Reference (DCFR) in 2009.

Both the Lando Commission and the SEGC were comparative legal research efforts striving to create a body of principles of private (contract) law that is most suitable for Europe-wide application. While the SEGC does not have any legislative intent and only sees its work as a starting point for possible future EU law-making, the Lando Commission, at least initially, had intended a more direct political impact of its work.

A part from this more political focus, the main difference between the Lando Comission/SEGC and the Common Core Project are that the latter solely strives to carve out the common core of the existing European private laws, i.e. it constitutes a description of the status quo. The Lando Commission/SECG, in turn, do not stop there but aim to formulate the ideal provisions that a European private law regulation would contain (which does not necessarily have to be the most common type of provision within European national laws).

From a more philosophical perspective, the Lando Commission/SECG are the brain child of a comparative law analysis on how unification can work in a complex network of different legal entities. In particular, the European efforts have been inspired and aim to imitate the work of the American Law Institute (ALI). The ALI is an independent body of legal scholars in the United States that, by publishing Restatements, purports to facilitate a unification of the laws of the U.S. states. While these Restatements are by no means binding on any state, legislators and courts have often drawn inspiration from them resulting in a less diverse legal landscape within the United States. It remains to be seen whether a harmonization through principles also works on the long run in the European context.

Bibliography

  • Ole Lando, Salient Features of the Principles of Contract Law: A Comparison with the UCC, 13 Pace Int’l L.R. 339-369 (2001).
  • Von Bar et al., Principles, Definitions, And Model Rules of Private Law, Draft Common Frame of Reference (2009), available here.

The Common Core Method and the Theory of Legal Formants

Sacco’s dissectioning the legal rule in a number of legal formants is the methodological step forward most useful for modern common core analysis.(from the Common Core website)

A discussion of the common core method in comparative law would be incomplete without mentioning the theory of legal formants that was introduced by Rodolfo Sacco.

Legal formants can be defined as all the elements that constitute the ‘living law’ of a country. They may vary in type and number from one country to another. Thus, it is probably impossible to compile a list of all legal formants that exist. Instead it is important to become aware of the three different kinds of perceptibility of legal formants. A part from the official sources of law, i.e. cases and legislation, other factors also influence how law is practiced in a particular country. Some of these other factors are more obvious, e.g. scholarly interpretation and judicial reasoning. Sometimes the elements of a legal phenomenon may only be partially obvious. Sacco calls the partially obvious legal formants synecdoche. In other cases, legal formants may be completely hidden. Sacco calls these hidden legal formants cryptotypes.

Cryptotypes (and to some extent probably also synecdoches) only become apparent when more than one system is examined through comparative study. Ideally the comparative lawyer, though privy to the legal systems discussed, is sufficiently detached as to abstract from the obvious rules in order to elicit implicit patterns and practices.

Three interesting contrasts are those between statute and the law as applied, the law as applied and the law as described, and between the situation the law deems to be normal and the situation that is normal in a sociological sense. (Sacco, infra, p. 378)

Through these implicit practices, rules that are prima facie contrary to each other, may indeed not differ from each other at all. It is the task of the comparative lawyer to discover such hidden commonalities among legal systems. And this, again, leads us back to the basic goal of the common core method in comparative law.

Bibliography

  • Rodolfo Sacco, Legal Formants: A Dynamic Approach to Comparative Law (Installment I of II), 39 Am. J. of Comp. L 1-34 (1991).
  • Rodolfo Sacco, Legal Formants: A Dynamic Approach to Comparative Law (Installment II of II), 39 Am. J. of Comp. L 343-401 (1991).