Book contents
- Frontmatter
- Contents
- Preface
- Series editors' Preface
- Table of cases
- Table of treaties and legislation
- I Civil society and political union
- II The acquis communautaire in private law
- III The hidden code
- IV Private law and the Economic Constitution
- V Cultural diversity and European identity
- VI Respecting legal diversity
- VII Multi-level private law
- VIII Strengthening convergence
- IX Exploring the European Social Model
- Index
- CAMBRIDGE STUDIES IN EUROPEAN LAW AND POLICY
- References
VI - Respecting legal diversity
Published online by Cambridge University Press: 26 February 2010
Book contents
- Frontmatter
- Contents
- Preface
- Series editors' Preface
- Table of cases
- Table of treaties and legislation
- I Civil society and political union
- II The acquis communautaire in private law
- III The hidden code
- IV Private law and the Economic Constitution
- V Cultural diversity and European identity
- VI Respecting legal diversity
- VII Multi-level private law
- VIII Strengthening convergence
- IX Exploring the European Social Model
- Index
- CAMBRIDGE STUDIES IN EUROPEAN LAW AND POLICY
- References
Summary
In some European academic bedrooms, dreams are dreamed not only of a European ius commune but even of a European Civil Code. It is thought that such a Code could build bridges between Member States and support a common European identity. It is, however, generally agreed that no legal basis exists for such a European Code
With these pithy remarks, Cees van Dam, an expert in comparative tort law in Europe, dismisses the various projects for a European Civil Code. He rejects these proposals as completely impracticable because of the diversity of current private law systems. He is right to stress that currently European private law systems differ significantly. We can also acknowledge that some of this divergence between laws may be linked to broader cultural, social and economic differences at the national level. But my argument has been that at the level of principle, there is sufficient common ground to permit further progress towards building a common European identity around general laws. The fact that there is no agreement on the details and even some broader standards at present does not necessarily preclude the possibility of future rapprochement and a developing unity of principles.
Yet it must be admitted that legal diversity between national private law systems does pose some serious questions about the viability of the project of developing a European Civil Code. By creating a common set of European rules and principles in private law, a civil code would confront every national legal system with a serious challenge.
- Type
- Chapter
- Information
- The European Civil CodeThe Way Forward, pp. 146 - 181Publisher: Cambridge University PressPrint publication year: 2008
References
, ‘European Tort Law and the Many Cultures of Europe’, in , and (eds.), Private Law and the Many Cultures of Europe (The Hague: Kluwer Law International, 2007) 57, 79.Google Scholar
, ‘Can Europe Build Unity of Civil Law while Respecting Diversity?’ (2006) Europa e diritto privato 1.Google Scholar
, An Historical Introduction to Private Law (Cambridge: Cambridge University Press, 1992) 45–85.CrossRefGoogle Scholar
, ‘Roman Law and European Legal Unity’, in , , , and (eds.), 2nd edn, Towards a European Civil Code (The Hague: Kluwer Law International, 1998) 21, 39 (notes omitted).Google Scholar
, ‘A Common Contract Law for the Common Market’ (1996) 33 Common Market Law Review 1169, 1170.Google Scholar
, Legal History: A European Perspective, London: The Hambledon Press, 1991) while others point to the continuing significance of local laws and customs (e.g. O. F. Robinson, T. D. Fergus and W. M. Gordon, An Introduction to European Legal History, London: Professional Books, 1985). See also: B. S. Jackson, ‘Ius Gentium, Ius Commune, European Law’, in B. S. Jackson and D. McGoldrick (eds.), Legal Visions of the New Europe (London: Graham & Trotman, 1993) 3.Google Scholar
, ‘Learning from Europe and Learning in Europe’, in B. S. Markesinis (ed.) Gradual Convergence: Foreign Ideas, Foreign Influences, and English Law on the Eve of the 21st Century (Oxford: Oxford University Press, 1994) 1.Google Scholar
and (eds.), Principles of European Contract Law, Parts I and II (The Hague: Kluwer Law International, 2000).Google Scholar
The best-known example of this approach is and , An Introduction to Comparative Law, 3rd edn (Oxford: Oxford University Press, 1998).Google Scholar
and , ‘Coming to Terms with Good Faith’, in and (eds.), Good Faith in European Law (Cambridge: Cambridge University Press, 2000) 653. See also: J. Gordley (ed.), The Enforceability of Promises in European Contract Law (Cambridge: Cambridge University Press, 2001).Google Scholar
, ‘European Legal Systems are Not Converging’ (1996) 45 International and Comparative Law Quarterly 52.Google Scholar
, ‘Legal Culture and the General Societal Culture’, in , and (eds.), Private Law and the Many Cultures of Europe (The Hague: Kluwer Law International, 2007) 23–35.Google Scholar
This account is influenced by , Law as an Autopoietic System (Oxford: Blackwell, 1993).Google Scholar
, ‘The European Union, Law and Society: Making the Societal-Cultural Difference’, in , and (eds.), Private Law and the Many Cultures of Europe (The Hague: Kluwer Law International, 2007) 37.Google Scholar
, ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences’ (1998) 61 Modern Law Review11.CrossRefGoogle Scholar
For the notion of ‘well-being’, see: , ‘Inclusion: A Radical Critique’, in and (eds.), Social Inclusion: Possibilities and Tensions (Basingstoke: Macmillan, 2000)19, 28;Google Scholar
, ‘Do We have a Right to Pornography?’, in , A Matter of Principle (Oxford: Oxford University Press, 1986) chapter 17.Google Scholar
, The Morality of Freedom.
See Principles of European Contract Law, Parts I and II, and (eds.) (The Hague, Kluwer Law International, 2000).Google Scholar
Website of the Study Group, www.sgecc.net.
Website of the Society, www.secola.org.
Study Group on Social Justice in European Private Law, ‘Social Justice in European Contract Law: A Manifesto’ (2004) 10 European Law Journal653.CrossRef
, ‘The Constitutionalization of European Contract Law: Judicial Convergence and Social Justice’ (2006) 14 European Review of Contract Law167.Google Scholar
, ‘The European Union, Law and Society: Making the Societal–Cultural Difference’, in , and (eds.), Private Law and the Many Cultures of Europe (The Hague: Kluwer Law International, 2007) 37, 43.Google Scholar
, ‘The Ethical Pluralism of Late Modern Europe and Codification of European Contract Law’, in (ed.), The Need for a European Contract Law: Empirical and Legal Perspectives (Gronigen: Europa Law Publishing, 2005) 121.Google Scholar
Lord Bingham of Cornhill, ‘A New Common Law for Europe’, in (ed.), Millennium Lectures: The Coming Together of the Common Law and the Civil Law (Oxford: Hart Publishing, 2000) 27.Google Scholar
and , ‘The Judge as Comparatist’ 80 Tulane Law Review 11; G. Canivet, ‘La pratique du droit comparé par les cours suprêmes’ (2005) 80 Tulane Law Review 221.Google Scholar
, ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences’ (1998) 61 Modern Law Review 11, 15–16.Google Scholar
, above n. 44; , ‘The voice of the Community in Private Law Discourse’ (1997) 3 European Law Journal407.Google Scholar
Lord Goff of Chieveley, ‘Coming Together – The Future’, in (ed.), Millennium Lectures: The Coming Together of the Common Law and the Civil Law (Oxford: Hart Publishing, 2000) 239.Google Scholar
, ‘European Tort Law and the Many Cultures of Europe’ in , and (eds.), Private Law and the Many Cultures of Europe (The Hague: Kluwer Law International, 2007) 57, 73.Google Scholar
E.g. M. van Hoeke, ‘The Harmonisaton of Private Law in Europe: Some Misunderstandings’, in M. van Hoeke and F. Ost (eds.), The Harmonisation of European Private Law (Oxford: Hart Publishing, 2000) 1; A. Chamboredon, ‘The Debate on a European Civil Code: For an “Open Texture”’, in M. van Hoeke and F. Ost (eds.), The Harmonisation of European Private Law (Oxford: Hart Publishing, 2000) 63.