Of Harmonization and Fragmentation: The Problem of Legal Transplants in the Europeanization of Private Law
| DOI | 10.1177/1023263X1001700202 |
| Author | Leone Niglia |
| Published date | 01 June 2010 |
| Date | 01 June 2010 |
| Subject Matter | Article |
116 17 MJ 2 (2010)
OF HARMONIZATION AND FRAGMENTATION:
THE PROBLEM OF LEGAL TRANSPLANTS IN
THE EUROPEANIZATION OF PRIVATE LAW
L N*1
ABSTRAC T
e pur pose of this Essay is to re-evalu ate the project of private law harmoniz ation via
directives in the vocabulary of classical comparative scholarship on legal tran splants. e
Essay draws on writings according to which the Community l egislature, when emplo ying
foreign r ules for the purpose of harmonising private law, does a jo b that resonate s with
that of any other legislature wi shing to introduce into legi slation rules based on foreign
material. For it w ill have to deal with the extent to which the intended le gal transplant
can be success fully actuali sed or otherwise, in relati on to favourable or not contex tual
factors. On the basis of this approach two claims look appropriate. First: that, in shaping
and advancing the age nda of private law Europeanization, the actors involved in the
Community legi slative process pay lit tle attention to a range of adverse contex tual
conditions that happen to obstruct harmonization. is is what legal comparative analyses
that focus on legal transplants would call a ‘misus e’ of the comparative legal method, which
typically results, as it does in our case, in the failure of var ious intended legal transplants.
Second: that the Community legislature can learn one important lesson from the teachings
of comparative schol arship on legal transplants. at is: th ere are situations in which
contexts, at the receiving end of the legal transplants, are fundamentally at odds with the
rules-to-be-trans planted. Although the purpose of har monization is to narrow down th e
variety of laws, in such problematic situations the harmonization agenda could be adjusted
* Director of the Centre for Europe an L egal Studies and A ssociate Professor of L aw/Reader, Scho ol
of L aw, University of E xeter, UK; Jean Monnet Fel low, University of Michigan Law Scho ol, USA. I
acknowledge support from t he University of Michigan, School of Law. is art icle is the third of a
series that a ddresses the condit ion of comparative law a s an intellectu al endeavor in the se rvice of
legal u nication i n Europe. e rst t wo are, ‘ Taking Compar ative Law S eriously – Europe’s Private
Law and the Poverty of the O rthodoxy’ 54 American Journ al of Comparative Law 2 (2006), p. 401 and
‘Beyond Enc hantment – e Possibil ity of a New Eu ropean Pr ivate Law’ Yearbook of European Law
(2009) p. 60–94.
Of Harmoniz ation and Fragmentation : e Problem of Legal Transpla nts
in the Europea nization of Private L aw
17 MJ 2 (2010) 117
in relation to the targeted conte xts, so as to avoid problems associated with th e rejection
of various le gal transplants. e articl e suggests a number of context-sensitive techniques
available for a legislature committed to avoid ‘mi suse-by-legislation’ in as diverse areas as
unfair contracting, product liability an d guarantees. It is submitted that the ongoing work
of the Commission aimed at review ing a triad of directives (the ‘Product Liability’, ‘Unfair
Terms’ and ‘Doorstep’ Directives) would be ideal terrain for initiating the required change,
if only because of the ample accumulated evidence of the many failures in enforcing k ey
rules contained in each such directive. It is also submitted that the Commission, regrettably,
is not at al l embracing such techniques. Recent moves towards ‘ full harmoniz ation’, such
as proposed ‘ directive on consumer rights’ are criticised in this light .
Keywords: harmoni zation; fragmentation; legal t ransplants; European private law;
direct ives
According to a line of scholarship initiated by Otto K ahn-Freund, a ‘misuse’ of the
comparative law method takes place whenever t he ac tors involved in the legislative
process transplant foreign rules in their own legal system with little regard for the
rules’ context.1 As the host legal s ystem is bound to reject any foreign legal material that
originates i n incompatible contexts,2 soc iety will have to put up with foreign rules that
become part of the receiving sy stem only supercially, as they remain dead letter for not
being transplanted in ac tual fact. is creates at best uncertai nties and at worst conicts
of var ious types in the host legal system.3 O ver the pa st decades, comparativists have
proven the value of misus e-by-legislat ion as a useful framework for a nalysis of episodes
of law reform that rely on foreign elements.4
1 Compare Kahn-Freu nd, ‘On Uses a nd Misuses of Comparative Law’ 37 Modern Law Review 1 (1974),
p. 1–27.
2 As in other elds of the law, in the l iterature on legal tra nsplants ‘context’ is a cont ingent category, and
must be understood in relation to the specic s of the episodes of l aw reform by transplantin g, as my
analysis be low purports to show.
3 In the sense ex plained below at I. C ompare also Ka hn-Freund ‘On Uses and M isuses’, 37 Modern Law
Review 1 (1974), p. 1 (noting con icts and uncer tainties in relat ion to transpla nting family a nd labour
law rules); Teubner ‘Legal Irrit ants: Good Fa ith in Brit ish Law or How Unifying Law End Up in New
Divergencies’ 61 Mode rn Law Review 1 (1998), p. 11–32, (noting con icts and uncert ainties in relat ion
to transpla nting contract law ru les).
4 Aer O. Kahn-Freund’s initiat ion of the debate with his seminal Artic le of 1974, and Watson’s response
in ‘ Legal Tra nsplants a nd Law Reform’ 92 Law Q. Re v. (1976), p. 79 over the pa st decad es schola rs
have large ly and c onvincingly shown the hurdles t hat may a ccompany the act of legal tr ansplanting
by legislat ion: compare e.g. Stein ‘Uses, Mis uses–And Nonuses of Comparative Law ’ 72 Northwester n
University Law Rev iew 2 (1977), p. 198 –216; Teubner, 61 Mode rn Law Review 1 (1998), p. 11; Ewald
‘Comparative Jurispr udence (II): e Logic of Legal Transplants’ 43 AMJCL (1995) p. 489–5 09; Legrand
‘e Impossibility of Legal Transplants’ 4 Ma astricht Journal of Euro pean and Comparative Law 2
(1997), p. 111; Miller ‘A Typology of Legal Transplant s: Using Sociolog y, Legal History and Argentine
Examples to Ex plain the Transplant P rocess’ 51 AMJCL 4 (2003) p. 839–885.
To continue reading
Request your trial