Challenges for the European Law Institute
| Pages | 5-23 |
| Date | 01 January 2012 |
| Author | Reinhard Zimmermann |
| DOI | 10.3366/elr.2012.0081 |
| Published date | 01 January 2012 |
“Puisqu'il y a un mouvement irrésistible de pénétration juridique et législative, peut-il y avoir et doit-il y avoir une science qui ait pour objet, non seulement d'observer ce mouvement, qui vient de la nature et qui vient de l'homme, mais de le régler, de le discipliner, de le diriger, s'il le peut? Cette science-là, si elle existe et si elle peut exister, sera vraiment, non plus la méthode comparative ou la méthode de Droit comparé, mais la science du Droit comparé, au sens juridique du mot”: this is how Raymond Saleilles described the central question on the agenda of the International Congress for Comparative Law in Paris. He spoke during the
Congrès international de droit comparé,
The Congress in Paris in 1900 is widely regarded as having stimulated the emergence of comparative law as a specific discipline, or branch, of legal scholarship. Today, I think, it can be said that comparative law has indeed become a vibrant and intellectually stimulating field of study and research, and the visions inspiring Saleilles, Edouard Lambert and many other speakers at that Congress have thus, at least to some extent, become reality. One of the key tasks for comparative legal scholarship, according to Lambert, was the international unification of law. “L'action unificatrice attribuée au droit comparé … se bornera à effacer progressivement les diversités accidentelles entre législations régissant des peuples de même civilisation”, he said.
Ibid 26 at 38.
This statement raises a number of questions. Are the differences dividing the laws of the various modern nation states really accidental? Do comparative lawyers not have to focus on much more than acts of legislation? Is legal unification equally desirable for all areas of the law? These and many other questions are still with us today. None the less, comparative law has eagerly embraced the task of preparing the ground for legal unification both on a global and European level. Also the Europeanisation of legal scholarship has made considerable progress over the past two decades. Thus, a sizable European law library has been produced: monographs, textbooks, casebooks, and journals covering a whole range of legal disciplines. The real hallmark of comparative law scholarship under the auspices of Europeanization, however, has been the astonishing proliferation of transnational working groups. The interaction engendered by them has led to a significant change of mentality, particularly among the younger generation of legal scholarsHardly anybody in the audience, I suppose, will fail to realise that Paris is a highly symbolic place for the Inaugural Congress of a new initiative also aiming to bring together lawyers from many different countries. It evokes memories of what has been termed “the belle époque of comparative law”,
B Fauvarque-Cosson, “Comparative law in France”, in M Reimann and R Zimmermann (eds),
The new initiative for which this is the Inaugural Congress is the European Law Institute (ELI). The foundation of such an Institute has been repeatedly suggested, or even demanded, over the past ten or fifteen years, particularly in view of certain structural deficits hampering the harmonisation of law in Europe. These calls have prompted the creation of an Association for a European Law Institute (ELIA) on the one hand, and an international conference organized by the European University Institute in Florence (EUI) under the title “A European Law Institute? Towards Innovation in European Legal Integration” on the other. The contributions to the latter conference revealed a widespread agreement that the creation of a European Law Institute is highly desirable. It may even, to use a phrase famously coined 200 years ago, be part of the “vocation” of our time in matters relating to law and legal scholarship.
F C von Savigny,
It is my task today, as chairman (together with Dr Irmgard Griss) of the Founding Committee, to familiarise you with essential features of that Institute, and with its mode of operation. I will attempt to do this by highlighting a number of specific challenges facing the ELI. Occasionally I will refer to the one initiative that everybody who has written about the ELI has mentioned as a source of inspiration: the American Law Institute. Its creation had been prepared by a “Committee on the Establishment of a Permanent Organization for the Improvement of the Law”, chaired by the former Secretary of State Elihu Root. The name of the Committee reveals its programme, as does, in somewhat greater detail, the certificate of incorporation: the particular business of the American Law Institute was “to promote the clarification and simplification of the law and its better adaptation to social needs, to secure the better administration of justice, and to encourage and carry on scholarly and scientific legal work”.
The Institute's charter is available at
European Commission,
The American Law Institute was incorporated on 23 February 1923, i.e. 88 years ago. It would be foolish not to ask what we can learn from its experiences.
The first, and fairly obvious, challenge facing the ELI is to build up its membership. The American Law Institute is made up of 4,000 lawyers, judges and law professors from all areas of the United States, as well as from many foreign countries. The ELI, to date, has 52 Founding Members. They come from 22 different countries; they include professors, judges, judicial officers, land registration officers, notaries, and lawyers in private practice; they specialize in private law, public law, procedural law, conflicts of law, or European Union law; and they represent about 20 different networks or organizations active in the field of European law. The list of Founding Members, essentially, reflects the genesis of the ELI for it was thought both fair and expedient to involve, and bring together, the two organizations that had initiated the process of creating the ELI, i.e. ELIA and the EUI. Both initiatives appeared to complement each other very well. For while ELIA was based on individual membership (within a short period it managed to attract more than 300 members), the EUI had invited representatives of a long list of “networks” active, in one way or the other, in the field of European law. Each of the three Working Groups charged with the drafting of the Articles of Association, with determining the composition of the Founding Committee, and with the preparation of this Congress, respectively, was coordinated by one member of the EUI, one member of the board of ELIA, and a third person chosen by the two others. Essentially, therefore, it is the members of the Founding Committee, as determined by one of these Working Groups, that have become the Founding Members of the Institute. Some of them have formerly been members of the ELIA board, while others represent important professional or academic organisations or networks. But these Founding Members have just got the ELI going. Membership is open to all natural persons who wish to contribute actively to the development of European law, as long as they undertake to do so on the basis of their own personal and professional convictions without regard to the interests of particular stakeholders. They must, in other words, be independent. The Articles of Association refer to such persons as Fellows. Fellows are appointed by the Council of the ELI by a two-thirds majority vote. On the Registration Form everybody invited to this Congress was asked whether he or she would like to be considered for membership of the ELI. There are some other categories of members, i.e. ex-officio Fellows, individual Observers, and institutional Observers; the details appear from Art. 8 of the Articles of Association. Unlike with the American Law Institute, no upper limit has been fixed for membership. It is obvious that the ELI intends to be inclusive, rather than elitist. It is not an Academy. In particular, it encourages the younger generation of lawyers to join. At least two members of that generation are on the first Council.
A second, probably equally obvious, challenge for the ELI consists in establishing a smooth mode of operation, and especially...
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