All entries for Thursday 11 October 2012

October 11, 2012

The current Europeanization of law : result of the history.

Today, Europe is creating a new common law. It’s seems to be something new, complicated and frightening for many. But it’s not a real novelty. Europe used to have a common law, which was dominated by the ius commune.

The common law of Europe has never been a real common law. First of all, it was a legacy of Rome, with the Corpus iuris civilis, which was a compilation of Roman law, made by the Emperor Justinin in the 6th century ; but also a shared legal culture, and a same language using by legal scholars.The ius commune was based on Roman and canon law. It refers to the set of rules that apply generally to a given territory, which formed the basis of legal thinking in Western Europe. The humanist school brought a truly ius commune in the 16th century.

Down the centuries, there have been many evolutions of law. For example, from the 19th century, the codification in many countries (as in France, Italy, or Germany) contained an unification of a country’s laws, and abolished the old customs and the ius commune. The 19th and the first part of the 20th centuries represent the nationalisation of the law. Two world wars and a common desire to unite ,so that it doesn’t happen again, led to the European Communities. Then we saw the rebirth of an old idea, the ius commune.

Nowadays, sources of law so as legal systems of Member States are different, but we can notice that the European Union and the globalisation create new legal problems and solutions.

For example, contract law is no longer exclusively national. This is one of the reasons why there are so many study group within the European Union working on an unification. The fact that the Commission on European Contract law drafted the Principles of European Contract Law in 1999, and that in 2009 a commission directed by Professor Landö published the Draft Common Frame of Reference proves the importance, but also the difficulty, of the unification for Europe.

The example of contract law shows how hard it is today to develop an european common law. We could just take history into account and remember that there is only one European family of law.

Sources:D. Heirbaut and M.E. Storme, The historical evolution of European private law (the Cambridge Companion to European Union Private Law, Cambridge University Press, 2010); H. Beale, B. Fauvarque-Cosson, J. Rutgers, D. Tallon and S. Vogenauer, Casebook on the Common Law of Europe: Contract Law (Hart, ed. 2, 2010).

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