All entries for Tuesday 09 October 2012
October 09, 2012
Linguistic and culture : two arguments against the an Europeanisation of contract law
The Europeanisation of contract law is an enterprise of the European Commission about creating an European contract law. If the creation of a contract law for the Europe isn't criticised itself, the elaboration of European Civil Code, which is seen as the final aim of this enterprise, is subject to controversy.
The issue isn't about the law itself. The issue is about the creation of a legal monument representing the Europe. In this way that seems impossible according to certain persons.
One of the argument, developed by Gérard Cornu is that the creation of an European Civil Code couldn't be possible because it's a problem of linguistic. « French law can only be the daughter of the French language ». It means that not a law, but a code, as the legal monument of a community, can be created only for people using the same language, and at least sharing the same culture. And because there is no European language, an European Civil Code is impossible.
We can ask if this argument is reliable. The French Civil Code has inspired all of the civil law country around the world, especially in Europe. Because it is an example of unity, it had inspired the German civil code (BGB). In Germany, the code had permitted the unity of the nation, united around the law. And not the opposite. Why the French civil code couldn't be the start of an European legal unity ? Maybe is the concept of European legal unity itself which is controverted.
An other argument, of Pierre Legrand, against the creation of a Civil Code is based on the linguistic and the culture of the EU's member.
Because the law is created by the society, and not the society by the law, the legislative instrument is soaked of the society's aspiration. The history, the psychology, wrote Pierre Legrand, can explain the legal system of a country.
The French Civil Code is, in this way, a unique French creation, and can not be copied for others country. An European Civil Code could be seen as a domination of the civilian society on the common law community. Europe can not impose to common law countries a legal system at the opposite of them.
Here we are in front of the most important problem in Europe, in the legal culture itself. The union of two opposite. This union may prevent the elaboration of a European Civil Code.
Source : 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, in library: KN10 C6)