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.

What Variables Define a Legal System?

One issue that I just briefly mentioned in my last post is the choice of variables that help classify legal systems. In statistics, a variable is a measurable attribute for a sub-category of an entity. Variables should be intrinsically different from each other. Together, all variables should constitute a comprehensive representation of the entity as a whole. Continue reading What Variables Define a Legal System?

The European Union as a Mixed Legal Sytem

In my last post, I mentioned the role of the European Union (EU) as a vehicle to converge civil and common law. Today, I am going one step further by discussing whether the EU can be considered a mixed legal system. On the one hand, such a classification may seem evident. On the other hand, it is quite unusual to describe a transnational system as a mixed jurisdiction. So the question is whether the EU can be classified as a mixed legal system. If yes, EU law could draw inspiration and learn from the way things are handled in mixed jurisdictions.

Mixed jurisdictions traditionally combine common and civil law elements in an obvious way. Usually common law takes charge of public law, while civil law governs the private law side. While this definition is very simplistic and does not do right to the diversity among non-traditional mixed jurisdictions, it will serve the purposes of this post – determining whether the EU meets the standards of a mixed legal system.

So does the EU combine civil law and common law in an obvious way? According to a previous post, civil law is characterized by more generalized, codified laws, while common law distinguishes itself by rather specialized case law. Prima facie, the EU has a large body of treaties and regulations that may be seen as codes. Its law is also further shaped by case law by the European Court of Justice (ECJ). Thus, the EU merges civil law and common law elements. Decisions by the ECJ, however, resemble more interpretative decisions by civil law courts than creative rulings by common law courts.

Consequently, the EU does not fulfill this first criteria and can therefore not be considered a mixed jurisdiction in the traditional sense. Instead, the EU is a brainchild of civil law countries that was assigned to the few common law members. This situation is the exact opposite of the way mixed legal systems historically developed. In that regard, mixed jurisdictions may still help in resolving issues of reception of EU law in common law member countries.

Bibliography

  • Valentine Vernon Palmer, Mixed Jurisdictions … and the Myth of Pure Laws, 67 LA L. REV. 1206-1218 (2007).
  • Colin B. Picker, International Law’s Mixed Heritage: A Common/Civil Law Jurisdiction, 41 VANDERBILT TRANSNAT’L L. REV. 1083-1138 (2008).
  • William Tetley, Mixed Jurisdictions: Common Law vs. Civil Law (Codified and Uncodified), 60 LA L. REV. 618-738 (2000).

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