How to Take the Road Untravelled? European Private Law in the Making: A Review Essay
| Date | 01 March 1999 |
| DOI | 10.1177/1023263X9900600103 |
| Author | Jan Smits |
| Published date | 01 March 1999 |
| Subject Matter | Article |
Jan S mits
How to Take the Road Untravelled? European Private
Law in the Making: A Review Essay
Basi l S. Mar kesinis, Foreign L aw and Comparative Method ology: a
Subject an d a Thesis, Hart P ublishing 1997, xx xii + 48 7 pages,
hardback, £4 5.0 0.
B. S. Marke sinis, W . Loren z and G. Dan nemann, The German Law of
Oblig ations, Volume I: The Law o f Contracts and Restitutio n: A
Comparative Introduction, Clarendon Pre ss 19 97, x lvii + 942 p ages,
hardback, £7 5.0 0.
§ 1. Introduction
It is truism to state that a new subject within a scholarly discipline - such as the law -
tends to suffer primarily from methodological problems. As long as these problems have
not been resolved, or at least have not been provided with an answer regarded as
satisfactory by most academics in the field, it is difficult to come to the substance of the
new su bject. The recent development of the emergence o f a ‘European priva te law’ is
a good example of this phenomenon. On the one hand, most private law scholars (and
the same goes for European practitioners, although they are not as outspoken as their
colleagues in the universities) agree that some sort of harm onization, un ification, or
even codificatio n of private law in Europe should be realized. They reason that a truly
single European market cannot properly function without a common private law. Private
law (in parti cular the law of contract) is after all the backbone of economic activity and
if there are too many differences between the legal systems of different countries,
having as a consequence uncertainty, this activity is severely hampered , ev en if the
feelings of business partners are more of a psychological nature t han based on real
Senior L ecturer in Private Law, Maastricht University (NL); Vi siting Lecturer, University of Liège
(B). This article was accepted fo r publication on September 10, 1998; la ter publications could not be
discussed.
6 MJ 1 (1999) 25
How to Take the Road Untravelled? Euro pean Private Law in the Making
diffe rences.1 On the other hand, however, there is widespread disagreement about th e
way this new iu s c ommu ne europ aeum should be established. This has led to an already
vast amount of literature concerned with this methodological quest ion.2 When
compared to the few publications that are mainly concerned with subs tance,3 the
emphasis on methodology is striking. This is all to be explained by the common sense
notion that substance is a risky business as long as there is no relative consensus o n the
methodology to a chie ve substance.
In this review essay, I will try t o categorize the present attempts at creating a European
private law and critically discuss these attempts in the light of recent practical and
theoretical literature. There is every need to do th is since the formerly rat her narrow
and ‘p ositivist’ (namely focusing on rules) discussion on European private law is now
broadening very fast. Over the last two ye ars, theories inspired by sociology and
cultural sciences, 4 public la w5 and legal theory itself6 have enriched the discussion.
Special attention is paid to two recent books by Basil Markesinis, one concerning
methodology and one concerning substance. This emphasis on Markesinis’ views is
appropriate since he is on e of the few authors who is able to show the results i n practice
of a more or less worked out theory on (and methodology of) comparative law. The
essay thus tries to compare the present attempts to create a European private law with
the method proposed by Markesinis.
It is thus the European pr ivate law in th e m aki ng 7 that is discussed here. Although
some of the proponents o f this possibly new ius com mun e refer to that p eriod of time
1. Jürgen Ba sedow, ‘Un d roit commun des contrats pour le m arché commun’, 50 Re vu e I nte rna tio na le
de d ro it com pa ré (1998), 7, argues that psychological feelings a bou t fea r ed differences may b e more
important then the existence of true differences. Likewise, the psychological impact o f a Euro pean
Civil Code would be greater than is usually assumed.
2. F or an overview of literature in general on European private law see Ewo ud Hondius, ‘Towards a
European Civil Code. General Introduction’, in A.S. Hartka mp eta l. (eds .), Tow ard s a Eur ope an G v il
Cod e, (Ars Aequi, 1998), 2 nd. ed ., 3.
3. See § 2.C .I.
4. See in particular the writings o f Pierre L egrand who, influenced by ideas from the cultural sciences
and langua ge theory, has argued that a Europ ean Civil Code is not feasible (see § 2.B .3).
5. Daniela Caruso, ‘The Missing View o f the Cathedral: The Private Law Paradigm o f European Legal
Integration’, 3 Eu rop ea n L aw J ou rn al (1997), 3.
6. See, e.g., Bert van Roermund, ‘We, Europeans; On the Very Idea of a Common M arket in European
Community Law’, in Frank Fleerackers e t al. (eds.), L aw , L ife a nd t he Im a ges o f Ma n (F est sch rif t
Br oek ma n) , (Duncker & Humblot, 1996), 455; Mark van Hoecke, Mark Warrington, ‘Legal Cultures,
Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law’, 47 I nte rn ation al
an d C om par ativ e L aw Qu art erly (1998), 495; J.M . Smits, ‘Eenheid en verschei denheid in het
contractenrec ht’, 27 R ec hts filo so fle & Re ch tsth eor ie (1998), 10.
7. See H.C.F . Schoordi jk, ‘Enkele opmer kingen over de bronnen van verbintenis en "Euro pean law in
the m aking”’, in M.E. Franke et al . (eds.), Eur ope es c on tra cten re cht , (Gouda Quint, 1995), 95. It
goes withou t saying that the expression is borrowed from C.K. Allem, La w in th e M aki ng , (1927).
26 6 MJ 1 (1999)
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