Book Review: The Struggle for European Private Law. A Critique of Codification
| Published date | 01 June 2015 |
| Date | 01 June 2015 |
| DOI | http://doi.org/10.1177/1023263X1502200308 |
| Subject Matter | Book Review |
472 22 MJ 3 (2015)
BOOK REVIEW
L. Niglia, e Struggle for European P rivate Law. A Critique of Codi cation. Oxford:
Hart Publishi ng, 2015. 185 pages, ISBN 978–1–84946–260 –0, £45
In recent legal history, any suggest ion of compressing private law into a single corpus
of rules has inevitably given rise to lively debates in politica l and academic circles. Two
hundred years ago the Kodi kationsstreit pitted Savigny against ibaut:1 just the most
famous and parad igmatic example of such a trend. In a very d i erent histor ical and social
context, the debates surroundi ng the (Dra ) Common Frame of Reference continue in
this tradit ion, simply rehearsing a dispute at the supranationa l level that scholars have
been familia r with for decades. As is well known, several a rguments both in support of
and in opposition to European codi cation have already been aired and were based on
quite diverse considerations. In par ticular, scholars have revealed (criticizing or prai sing
codi cation, o en on the basis of their own personal convictions about the role of law
in European societ y) the implications of the project from dogmatic, economic, pol itical,
cultural p erspectives and so on.2
is new book by Leone Niglia has to be placed in t his tradition of critique, from which
it nonetheless aims to depar t because of the broader and more politica l approach taken
towards the substance of Europea n codi cation. More precisely, the author rejects several
explanations described as ‘conventional’ and incapable of making real sense of what is at
stake. Rather, he proposes a more radica l reading of the ongoing process. He focuses on the
impact that a possible European codi cation – as epitomized in the projects of a (Dra )
Common Frame of Reference and to a simila r extent in the Common Europe an Sales
Law – could have on the ‘livi ng law’ as developed by courts and other actors: mostly at t he
national level but also in a continuous a nd promising dialogue wit h the supranational level.
In this sense, Niglia o ers a c aptivating and impor tant picture of the ongoing processes,
1 See H. Hattenauer (ed.), ibaut und Savign y: Ihre programmatische n Schri en (Munich, Verlag Franz
Vah len , 20 02).
2 See among many ot hers, H. Eidenmül ler, F. Faust, H.C. Grigoleit, N. Ja nsen, G. Wagner, R.
Zimmermann, ‘ e Common Frame of Referenc e for European Pr ivate Law. Policy Choises a nd
Codi cation Problems’ 28 Ox ford Journal of Legal Studies (2008), p. 659–708; M.W. Hesselink, CFR
& Social Just ice (Sellier, 2008); A. Somma (eds), e Pol itics of the Dra Common Frame of Reference
(Kluwer, 2009); P. Larouche and F. Chir ico (eds.), Economic Analysis of the DCFR (Sellier, 2010);
L.Anton iolli and F. Fiorentini (eds.), A Factual Asses sment of the Dra Common Frame of Reference
(Sellier, 2011); V. Sagaert, M. Storme and E. Terry n (eds), e Dra Common Frame of Reference:
National and Comparative Pe rspectives (Inters entia, 2012).
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