Epistemological Considerations in Private Law: Exploring Taxonomical Structures in the Common Law, Civil Law and beyond
| Published date | 01 December 2011 |
| Date | 01 December 2011 |
| DOI | 10.1177/1023263X1101800405 |
| Author | Stephanie Law |
| Subject Matter | Article |
454 18 MJ 4 (2011)
EPISTEMOLOGICAL CONSIDERATIONS IN
PRIVATE LAW: EXPLORING TAXONOMICAL
STRUCTURES IN THE COMMONLAW,
CIVIL LAW AND BEYOND
S L*
ABSTRACT
is paper aims to further the classication di scourse by examining the importance and
function of taxonomical structures in private law. e paper begins by considering the
extent to which it is possible to de velop, establish and maintain a classicator y scheme that
constitutes a genuine reection of the law and more generally, the value in searching for
such coherence in law. e discourse de veloped within the paper is based on an ass umption
that there is a signicant need for ta xonomy, both within and beyond the boundaries of
national law. is paper will introduce som e of the issues which are of particular relevance
at both the national level, through a con sideration of taxonomy and cla ssication in the
development of the civil and the common legal traditions, and the transnational level,
through an analysis of the attempts to develop legal taxonomy within the context of
European private law (examining in particular, the Dra Common Frame of Refere nce).
Keywords: civil law; common law; DCFR; lega l taxonomy; private law
§1. INTRODUCTION
It is submitted that the development of a sound taxonomic str ucture can be understood
to provide a basis upon which legal rules, concepts and principles can be a rranged in a
manner which facil itates greater coherence and understanding, thereby ma king it easier
to ascertain t he content of the law and rendering the law more accessible. Recently, there
has been increased consideration of the need for coherence and structure w ithin legal
* Stephanie Law, Ph.D. Rese archer, Depart ment of Law, European Universit y Institute, F lorence;
stephanie.l aw@eui.eu. Responsibi lity for any errors wit hin lies with t he author.
Epistemologica l Considerations in Pri vate Law
18 MJ 4 (2011) 455
systems, in particular, the manner in which dierent areas of private law interrelate.
However, it is submitted that these epistemological considerat ions remain underexplored,
both at a national level and in relation to the development of ‘private law beyond the
state’.1
is paper constitutes an e xamination of the importance of ta xonomy within law, in
the course of which, the f unction putatively performed by a classicator y system existing
within a par ticular lega l sphere is discussed. e paper w ill begin w ith an analysis of
the signicance of classication and an ex ploration of the predominant funct ions of a
taxonomic scheme within private law. Particular aspects of the dicu lties encountered
in establishing a nd maintaini ng coherence within a national private law context will
then be considered. An outli ne of the general taxonomic structure which ha s developed
and come to prevail with in the civil law tradition will subsequently be provided. is
will be followed by consideration of whether t here is scope to identify the presence of
such a classicatory scheme w ithin the common law tradition, given the dis tinct nature
of legal change both of, and wit hin, these dierent legal fami lies. ereaer, an analysis
of taxonomical str uctures transcending t he connes of national law will be undert aken.
In particu lar, attention is paid to the development of European priv ate law to the extent
that it is understood as an e volving enterprise, constituting an a malgam of the civil and
common law traditions. Following t his line of analysis, the paper wil l then proceed to
consider the structu ral framework, the nature of abstrac t categorization and the public/
private law divide within the Dra Common Frame of Reference (hereinaer, the
DCFR).
is paper purports to de velop further the notion that there is an importa nt need
for taxonomy or classication in law, and that it has played a signi cant role in both
the development of the civil, and to a less obv ious extent, the common legal traditions.
However, it is clear that the development of private law must be understood beyond these
national peripheries, which nec essitates a move away from the epistemological sta ndpoint
that emphasizes the domi nance of state-based law. e analysis withi n the paper is based
on an assumption that there is a fundamental need for a deter mination of the manner
in which legal development is understood to continue to evolve, a n approach, which is
considered to be particularly relevant to private law, given its conventional ties to the
nation state. is paper considers the notion of str ucture and systemat ization withi n
private law, at a domestic level, within the common and continental legal systems, and
beyond these state connes, with an assessment of the attempts to develop a supra-
national taxonomy withi n the DCFR. On th is basis, the paper purports to provide
the groundwork for further exploration of some of the issues relevant to the wider
transnational law di scourse.
1 R. Michaels and N. Jan sen (eds.), Beyond the State, Rethinking P rivate Law (Mohr Siebeck, Tübingen
200 8).
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