Against a European Civil Code

Published date01 January 1997
Date01 January 1997
AuthorPierre Legrand
DOIhttp://doi.org/10.1111/1468-2230.00065
Against a European Civil Code
Pierre Legrand*
The invention of the new that would not endure the resistance of antinomy would be a
dangerous mystification. Jacques Derrida
1
I propose to heed Nietzsche’s advice: ‘Handle deep problems like cold baths:
quickly into them and quickly out of them.’
2
The ‘deep problem’ I wish to address
here concerns European legal integration. Specifically, I want to consider a
propoundment which is apparently meeting with increasing favour in various
political, professional and academic circles: that of a European Civil Code.
3
The
paradox is noteworthy: while nineteenth-century civil codes ruptured aspects of the
commonality that had previously linked continental legal cultures, a civil code, it is
now thought by many, will cement a legal unity across European legal cultures.
The question is: should the idea of a European Civil Code be supported? My
answer is, emphatically: no, it should not. I have divided my argument into three
parts.
Europe is plurijural
A comparatist will discern, in today’s European Union, two legal traditions
referred to by anglophones as the ‘civil law’ (an imperfect but received
designation) and the ‘common law.’
4
Notwithstanding the influences and
interferences that have punctuated the incessant dialogue between these two
traditions, they are immediately recognisable as discrete and stable discursive
formations inviting meaningful reference to them as autonomous epistemological
clusters, and permitting the comparatist to dismiss the charge that she is fabricating
The Modern Law Review Limited 1997 (MLR 60:1, January). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
44
*Professor of Comparative Legal Culture, Tilburg University, The Netherlands.
This article owes much to the year I spent as Visiting Professor (Professeur associe
´) at the Universite´de
Paris I (Panthe´on-Sorbonne) and the Universite´ de Paris II (Panthe´on-Assas) in 1995–96. I have been most
fortunate in being able to depend, once again, on Linda Rae Legault’s expert guidance in the formulation of
the argument. The usual disclaimer applies. Translations are mine.
1 Derrida, L’autre cap (Paris: Editions de Minuit, 1991) p 71 (‘L’invention du nouveau qui ne passerait
pas par l’endurance de l’antinomie serait une dangereuse mystifications’). The author addresses the
ongoing process of integration within the European Union.
2 Nietzsche, Die fro
¨hliche Wissenschaft (Stuttgart: Kro¨ner, 1976) No 381, p 299 (originally published in
1882) (‘[I]ch halte es mit tiefen Problemen wie mit einem kalten Bade — schnell hinein, schnell
hinaus’).
3 eg Resolution [of the European Parliament] on Action to Bring into Line the Private Law of the
Member States, Off J EC 1989 C158/400 (26 May 1989); Resolution [of the European Parliament] on
the Harmonization of Certain Sectors of the Private Law of the Member States, Off J EC 1994 C205/
518 (6 May 1994). Both resolutions call for a ‘European Code of Private Law.’ See also Hartkamp et
al (ed), Towards a European Civil Code (Nijmegen: Ars Aequi Libri, 1994); Lando, ‘Principles of
European Contract Law’ (1992) 56 RabelsZ 261; Gandolfi, ‘Pour un code europe´en des contrats’
[1992] Revue trimestrielle de droit civil 707; Gandolfi, ‘Per la redazione di un ‘‘codice europeo dei
contratti’’’ [1995] Rivista trimestriale di diritto e procedura civile 1074.
4 I regard the Scandinavian countries as forming part of the civil law world, if as peripheral
constituents: eg Sundberg, ‘Civil Law, Common Law and the Scandinavians’ (1969) 13 Scandinavian
Studies in Law 179.
a reductionist differentiation.
5
While, as far as the two legal traditions are
concerned, the differences between them predominate over their similarities, they
each contain within themselves a range of legal cultures whose similarities inter se
outweigh their differences. Specifically, the civilian legal cultures represent
diverse states of equilibrium (or different stable solutions) on the theme of the
Gaian institutional system — a condition which differentiates them, as a group,
from common law jurisdictions which, as a group, do not offer any meaningful
variation on the Gaian institutional theme.
6
The notion of ‘legal tradition’ implies, among other features, an idiosyncratic
cognitive approach to law. In other words, there have developed, and there exist,
both a civil law and a common law mentalite
´— two different ways of thinking
about the law, about what it is to have knowledge of law and about the role of law
in society.
7
For example, the two legal traditions differ in their understanding of
facts, rules and rights. Moreover, they foster different views of the nature of legal
reasoning, of the role of systematisation and of the management of historical time.
8
An important feature of the civilian’s contemporary epistemological construct
(although not a necessary one as Denmark, Finland and Sweden continue to remind
us) is the civil code. The code, as a purportedly self-contained and self-referential
system, illustrates the deep-seated conviction held by civilian jurists that the lived
experience ought no longer to be privileged (codes have ‘a Spartan quality that is
unforgiving of spontaneity and insensitive to the foggy or the strange’
9
), that the
lived experience can be reduced to propositional knowledge in the form of a
5 Perhaps an analogy can assist the refutation of the view that the identification of two legal traditions
within the European Union is but the outcome of a theoretical construction. Let us suppose that I have
in front of me this morning’s editions of The Times and the Frankfurter Allgemeine. Let us assume,
further, that I choose to focus on the main article on p 3 in each newspaper and that I decide to
consider every fifth sentence within that article. I will soon be identifying what I will regard as
regularities or patterns with respect, for example, to the capitalisation of nouns and the location of
verbs within sentences. I will also conclude that, as far as these two grammatical features are
concerned, the two newspapers (or, rather, the languages they use) differ. In a sense, of course, I am
constructing these differences, for they are based on my understanding of what a capital letter, a noun
and a verb are. Yet these differences must also be acknowledged to exist in a meaningful way before I
ever come to them and pretend to eludicate them. In other words, the differences must be assumed to
be there even before my perceptual or interpretive apparatus is engaged. For instance, words in the
English and German languages are arranged in a certain order in advance of when I come to them
with my view of what ‘order’ is, that is, even before I purport to incorporate them into my cognitive
world. While the differences may need me to come to light and to come to light as part of a particular
explication, they do not need me to exist. Is there not noise when a tree falls in the forest without
anyone there to hear it? The same must be true of the differences between the civil law and common
law worlds. Before the comparatist ever comes to the study of legal traditions, there are centuries of
history that have, independently from her construction, produced differences between the civil law
and common law traditions that are as recognisable as those between the German and English
grammars.
6 For the importance of the thought of Gaius in Western legal history, see generally Kelley, ‘Gaius
Noster: Substructures of Western Social Thought’ (1979) 84 Am Histor Rev 619; Watson, ‘The
Importance of Nutshells’ (1994) 42 Am JCL 1.
7 I am aware of how legal cultures from civilian jurisdictions can differ among themselves. Indeed, the
opposite view would be untenable if one accepts, as I argue one must, the interconnectedness between
law and society, between law and culture. Moreover, there are clearly differences at the level of legal
cultures within the same jurisdiction. I am not, therefore, suggesting that the notion of mentalite
´is
monolithic either within a given legal tradition or within a legal culture. A rewarding ground of
investigation for the comparatist is, indeed, to elucidate para-mentalite
´s.
8 I explore these epistemological distinctions in my ‘European Legal Systems are not Converging’
(1996) 45 ICLQ 52, 64–78. For a reflection on the way in which an awareness of discrepant cognitive
formations must inform the theory and practice of comparative legal studies, see my ‘How to
Compare Now’ (1996) 16 LS 232.
9 Schneider, Culture and Enchantment (Chicago: University of Chicago Press, 1993) p 40.
January 1997] Against a European Civil Code
The Modern Law Review Limited 1997 45

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