All entries for October 2012

October 18, 2012

The necessity of comparative law

During the 19th and 20th centuries the globalisation and a significant increase of the number of transnational contracts explained the need of knowledges about the other legal systems. It is the role of the comparative law.

This is the study of differencies and similarities between different legal systems. There are differents aims to the comparative law.
First of all, to improve knowledges. The law is no longer considered merely national, comparative law can allow to learn about foreign legal systems. The study of different legal systems can also help find the best solution for a given problem, like in contract law, by offering a variety of solutions that can not be offer by the study of a single system.
Second of all, and according to Th. Kadner Graziano, the comparative law was « primarily used to improve one’s own domestic law ». The analysis of foreign legal systems may, by contrast, understand its national law. This give the possibility to discover the originality of its law and its shortcomings.
Finally, the comparative law brings to the development of europeanisation and internationalisation.

In Europe, for example,contract is a concept thatdoes not touch the same aspects in all legal systems. There are three major legal families. The « contrat » in French law is not totally the same than the « contract » in English common law or « Vertrag » in German legal system.To be able to establish contracts we need to understand and know the differences between them. The Europeanisation of private law refers to a process that aims to the soft harmonisation of private law. We need to understand the niceties of every legal systems to be able to develop texts like « The Principles of European Contract Law » or « The UNIDROIT Principles of International Commercial Contract ».

Nowadays it’s a necessity for the european lawyers to understand and learn about the different legal systems to develop a European legal system.

Sources: Th. Kadner Graziano ; 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).

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).

October 2012

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