American Private Law and European Legal Unification – Can the United States Be a Model?
| Author | Mathias Reimann |
| Published date | 01 September 1996 |
| Date | 01 September 1996 |
| DOI | http://doi.org/10.1177/1023263X9600300302 |
| Subject Matter | Article |
Mathias Reimann *
American Private Law and European Legal Unification -
Can the United States be a Model?
§1. Introduction
European interest in American private law has taken a new and somewhat surprising
twist. The focus, until recently, had been on the American political and constitutional
structure as a model for European integration. However, as the unification of private
law has become a prominent issue in Western Europe, the private law of the United
States has enjoyed increasing attention as well.
This shift in focus is illustrated particularly by the recent debate on the revival of an all-
European ius
commune.
There is no doubt that we are currently witnessing the rise of
a common private law on the level of the European Union. This law originates partially
in Brussels (in the form of regulations and directives), and partially in Luxembourg (in
the form of case law). It determines and, where necessary, even overrides the law of
the Member States. IThe result is a sort of uniformity imposed upon the Member
States from the outside. The primary focus of this essay, however, is the creation of an
innerunity (possibly emerging from the old ius
commune)
-the unification or assimila-
tion of the private law of the Member States through teaching and scholarship, i.e.
*Professor of Law at the University of Michigan.
1.
For
an overview. see P. Ulmer, 'Vorn deutschen zum europaischen Privatrecht',
Juristenzeitung
(1992), 1 ff. For quite some time, various groups have even discussed the idea of an all-European
codification, see the Resolution (of the European Parliament) on Action to Bring into Linethe Private
Law of the Member Slates [1989] O.J. C 158/400 reprinted in Zeitschriftfiir EuropiiischesPrivatrecht
(1993), 613 ff.; and the Resolution (of the European Parliament) on the Harmonization of Certain
Sectors of the Private Law of the Member States [1994] O.J. C205/518; see also O. Lando, 'Is
Codification Needed in Europe?' 1
European
Reviewof
Private
Law (1993), 157 ff.
MJ 3 (1996) 217
IAmerican Private Law and European Legal Unification
through the generation and explication
of
common principles. 2The question pursued
here is whether the United States can serve as a model for this process
of
unification. 3
This view has often been advocated in recent years in the continental academic literature
because European observers tend to consider America a powerful example
of
a private
law system that is at once federal and uniform. This view is frequently based on the
opinion that while the constitutional power to shape private law lies with the several
states, scholarship and teaching ensure its uniformity as a whole. 4To some extent, this
is true. Certain elements of American private law are indeed uniform throughout the
nation, and legal education and scholarship indeed sometimes contribute to this uniform-
ity. But the notion
of
auniform American private law distorts the true picture and
suggests imitation, a course that would be more harmful than helpful.
First of all, the idea of broad uniformity is an incorrect impression of American private
law itself (infra §
2.).
The notion is also misleading because it suggests that whatever
uniformity exists is primarily the result of teaching and scholarship (infra §3.). In
reality, these elements
playa
much smaller role than federal law and (federal and state)
legislation (§
4.).
Beyond all this, the American example illustrates that the unification
of law from the inside, i.e. through teaching and scholarship, depends on particular
conditions which are essentially extinct in the United States and increasingly endangered
in Europe (§
5.).
If the American experience can teach European jurists anything at all,
it is that they should stick to their own tradition.
2. In addition to the literature cited infra, see the articles in: B. de Witte and C. Forder (eds.), The
Common Law
of
Europe and the Future
of
Legal Education, (K1uwer, 1992).
3. The advocates of a modem private common law for Europe, however, consider the ius commune (i.e.
the Roman-Canon law as it prevailed in continental Europe from the high or late middle ages through
the era of national codification) the most important model, see H. Coing, 'European Common Law:
Historical Foundations', in M. Cappelletti (ed.), New Perspectives for a Common Law
of
Europe,
(Sijthoff, 1978),31 ff.; H. Coing, 'Europaisierung der Rechtswissenschaft', Neue Juristische Wochen-
schrift (1990), 937 ff.; H. Katz, 'A Common Private Law of Europe', in De Witte and Forder (eds.),
The Common Law
of
Europe and the Future
of
Legal Education, 31, 34 ff.; R. Zimmermann, 'Das
rornisch-kanonische ius commune als Grundlage europaischer Rechtseinheit' ,Juristenzeitung (1992),
8ff. This idea already appears in J.H. Merryman,
'On
the Convergence (and Divergence)
ofthe
Civil
Law and the Common Law', 17 Stanford Journal
of
International Law (1981), 357 at 359 f. See also
F. Wieacker, 'Foundations of European Legal Culture', 38 American Journal
of
Comparative Law
(1990), 1.
4. See Coing, Neue Juristische Wochenschrift(1990), 939f.; A. Flessner, 'Rechtsvereinheitlichung durch
Rechtswissenschaft und Juristenausbildung', 56 RabelsZ (1992), 243 at 246; Ulmer, Juristenzeitung
(1992), 8. Some authors, however, believe in the unifying power of legal education and scholarship
independently of the American model, see H. Katz, 'Europaische .Iuristenausbildung', Zeitschrift fiir
Europaisches Privatrecht (1993), 268 ff.; R. Sacco,
'The
System of European Private Law', in A.
Pizzorusso (ed.), Italian Studies in Law, (Martinus Nijhoff, 1992),71 at 80 f.
218
MJ
3 (1996)
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