Responsibility in Law and Morality
| Author | William Lucy |
| Published date | 01 July 2003 |
| DOI | http://doi.org/10.1111/1468-2230.66040093 |
| Date | 01 July 2003 |
REVIEWS
Jan Smits, The Making of European Private Law: Toward a Ius Commune
Europaeum as a Mixed Legal System, Antwerp: Intersentia, 2002, 306 pp, h62.
What should the European Union’s policy on unification of private law look like?
In The Making of European Private Law Jan Smits delivers his answer. The book
comprises eight chapters and an epilogue. Chapters 1–2 consist of a general
discussion of the need for and feasibility of a European ius commune in the field of
private law. Thereafter, the blending of the civil law and common law traditions in
mixed legal systems forms the focus of Chapters 3–8. Chapter 3 is concerned with
the issue of why mixed legal systems may serve as a source of inspiration for legal
scholars pondering the topic of how to unify the laws of Britain and continental
Europe. While attention is devoted to a host of mixed legal systems in Chapter 4,
Chapter 5 singles South Africa out as the most important. The mixing of civil law
and common law elements in relation to contract law, tort law and property law is
dwelt upon in Chapters 6–8 respectively. A section of Chapter 2, entitled
‘Reception of Law: an Economic Analysis’, forms the backbone of the book.
With regard to the debate about the need for and feasibility of a European ius
commune in the field of private law, Smits advocates a laissez-faire approach. In
effect, the writer goes so far as to assert that it should predominantly be left to
national courts to make a choice from the different legal systems (p 64). Smits
believes that preferences of citizens in separate jurisdictions regarding, for
example, the law of contract will be fairly invariant (p 2). From this Smits argues
that institutionally led unification of this branch of the law will not be necessary
because competition among national contract laws will lead to spontaneous
convergence. On the other hand, Smits believes that citizens in separate
jurisdictions will have divergent preferences regarding, for example, family law
(p 6). He suggests, therefore, that competition among national family laws will not
lead to spontaneous convergence. Yet, as divergent national family laws seem
unlikely to create roadblocks for cross-border trade and commerce, this outcome
is not a market failure. Hence, according to Smits, institutionally led intervention
is unjustified. In sum, without intervention by institutions of the European Union,
competition among national legal rules will succeed in bringing unity in those
areas of private law where it is really needed (p 64).
Unfortunately, even when Smits is correct in his belief that preferences of
citizens in separate jurisdictions regarding, for example, contract law will be fairly
invariant, his argument that competition among national contract laws will lead to
spontaneous convergence does not hold water. When preferences of citizens
regarding legal rules in separate jurisdictions are identical, national legal systems
can, most certainly, develop towards convergence spontaneously. However, this
will not necessarily happen for two reasons. First, the sharper the disparities in
laws of separate jurisdictions, the higher the costs of switching to the legal rules of
another jurisdiction. So, although the preferences of citizens in a given jurisdiction
may, for whatever reason, at a certain point in time, become identical to those of
citizens in another jurisdiction, the costs of complying with the preferred legal
rules may still prevent the switch from being made. This is called a lock-in effect.
Secondly, even in the case that citizens in separate jurisdictions have identical
rThe Modern Law Review Limited 2003 (MLR 66:4, July). Published by Blackwell Publishing Ltd.,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
650
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