The Foundations of European Private Law

Roger Brownsword, Hans-W Micklitz, Leone Niglia, Stephen Weatherill, Roger Brownsword, Hans-W. Micklitz, Leone Niglia, Stephen Weatherill, Roger Brownsword, Hans W Micklitz, Leone Niglia, Stephen Weatherill

• Publisher: Hart Publishing
• Year: 2011
• Print ISBN: 9781849460651
• eBook ISBN: 9781847317902
• Edition: 1
• Topic: Law
• Subtopic: Comparative Law
• Index: Law

There remains an urgent need for a deeper discussion of the theoretical, political and federal dimensions of the European codification project. While much valuable work has already been undertaken, the chapters in this volume take as their starting point the proposition that further reflection and critical thought will enhance the quality and efficacy of the on-going work of the various codification bodies. The volume contains chapters by representatives of the Common Frame of Reference, the Study Group and the Acquis Group as well as by those who have not been involved in particular projects but who have previously commented more distantly on their work - for instance those belonging to the Trento Group, and the Social Justice Group. The chapters between them represent the most comprehensive attempt so far to survey the state of the codification project, its theoretical, political and federal foundations and the future prospects for enforcement and compliance.

Part I

Theoretical Foundations

1

Editorial Introduction

ROGER BROWNSWORD

I MAGINE BEING ASKED what one makes of the theoretical foundations of European private law. Without a frame and a focus, without a context, it is not clear where this question is coming from and, in consequence, it is not clear how broad and how deep one should go in offering a response. However, when, some ten years’ ago, the European Commission launched its consultation on European contract law,¹ it did more than initiate debate on the significance of a unified private law environment for the development of the single market; it provoked radical reflection on the foundations of private law itself. Accordingly, for today’s generation of European lawyers, there is a self-selecting context for conversations about the basis of private law, namely the body of work that, during the last decade, has flowed from the Commission’s consultation and that has led, most controversially, to the drafting of a ‘Common Frame of Reference’ (the ‘DCFR’).² The thought is that by earthing our reflections in work such as the DCFR, we can develop our understanding of the theoretical foundations of private law while, at the same time improving our critical appreciation of the CFR project itself.

Opening the chapters in this part of the book, Hans Schulte-Nölke seeks to improve our understanding of the current crop of European ‘restatements’, particularly that presented in the DCFR, by reflecting on the apparently analogous restatements of the law published by the American Law Institute. Helpfully, Schulte-Nölke identifies four common types of complaint about the DCFR process and product. The first complaint—concerning the authors of the work and the methodology adopted—is processual. The remaining complaints—concerning presentation, coverage and substance—relate more to the product. At the core of the chapter, Schulte-Nölke constructs a matrix in which we can plot the intentions of a restatement or parts thereof. Along one axis, the question is whether the rule as restated is close to, or remote from, the positive national law(s); and along the other axis, the question is whether the rule as restated is judged to be a good or bad rule—hence, in principle, the four permutations are: (i) close/good; (ii) close/bad; (iii) remote/good; and (iv) remote/bad. In practice, we can surely eliminate (iv); to work on stating principles that are both a poor fit as well as being bad rules has little to recommend it. This means that, actually, we are left with the following three kinds of exercise:

1. One-dimensional restatements that aspire, quite simply, to fit as closely as possible with positive law, irrespective of whether that law is judged to be good or bad.
2. Two-dimensional restatements that aspire to state the law in a way that has some degree of fit with positive law while also being guided by a sense of what is a good rule.
3. One-dimensional restatements that aspire, quite simply, to articulate good rules, irrespective of whether the rules so articulated have any fit with positive law.

Clearly, if we confine our evaluation of restatements such as the DCFR to the aspirations of their authors, then this will have a significant bearing on the range of our critical comments. For example, if the restatement is intended as a one-dimensional articulation of positive law, we would not complain that it includes some bad rules; and, conversely, if the restatement is intended as a one-dimensional articulation of good rules, we would not complain that it does not always fit with the positive law. Similarly, the views that we have about the restatement’s process and methodology are likely to be coloured by our understanding of the intended object of the exercise.

The fact of the matter is, however, that we cannot assume that all so-called ‘restatements’ are trying to do the same thing; and our evaluation of these exercises, whether American or European, needs to be sensitive to the different purposes that might be pursued by their authors. One of the problems with the DCFR, Schulte-Nölke concedes, is that it is not always as clear as it might be about its intentions. Accordingly, Schulte-Nölke advocates that in future study groups should be more transparent as to their purposes, clearly signalling to what extent the restatement lays claim to being innovative, prescriptive and practically authoritative. Indeed, with such clarification, when authors and their audiences alike understand the nature of the exercise, we might find that the quality of both restatement process and product together with the materiality of the critical reception is improved.

Like Schulte-Nölke, Nils Jansen sees the American Restatements as a comparator for the clutch of modern European restatements (non-legislative codifications) running from the Lando Commission’s Principles of European Contract Law (‘PECL’)³ and the UNIDROIT Principles of International Commercial Contracts (‘PICC’)⁴ through to the DCFR. In Jansen’s view, both the American Restatements and the PICC have been ‘quite successful in presenting themselves as authoritative statements of the rules which nevertheless could be understood as a fair description of the law’⁵—in other words, as two-dimensional restatements meeting criteria of both fit and good rules. But, what of the DCFR? Here, although Jansen has no doubt that the DCFR, both in its formal presentation and in its underlying normative intention, is to be read as an authoritative codification of the law, he claims that it is less successful than some of its progenitors.

According to Jansen, there are no grounds for the presumption that simply because the DCFR builds on earlier restatements, it takes the articulation of European private law to a higher level of perfection. Quite the contrary, Jansen argues that the self-referential methodology that is characteristic of the modern European restatements has generated a counterproductive doctrinal dogmatism. The dogmatism is seen in an unwillingness to review critically earlier restatements (for fear of undermining their authority), a tendency that is aggravated by a willingness to transpose doctrinal features from one restatement to another. Jansen earths this general critique of the process in a detailed discussion of the treatment of pre-contractual information duties and mistake. His conclusion is not so much that European contract law needs less restatement, but that it ‘needs less doctrine and less dogmatism’.⁶

Following Jansen, Martijn Hesselink leads a procession of critics of the DCFR. In his chapter, Hesselink is principally critical of the foundational product of the DCFR—or, more precisely, he is critical of a shift in foundational position that can be detected between the ‘Interim Outline Edition’⁷ (which is founded on an open-ended list of 15 core aims and values of equal standing) and the DCFR (which is founded on a mere four ‘underlying principles’ of freedom, security, justice and efficiency).⁸ According to Hesselink, there is a difference between ‘values’ (which function as external critical standards of law and its operation) and ‘principles’ (which, as famously elaborated by Ronald Dworkin,⁹ play an internal role in legal reasoning). This presents a double bind for the DCFR: if freedom, security, justice and efficiency are to be understood as principles, they cannot possibly do the job—a mature system of private law simply cannot function with such a meagre stock of principles; and, if they are to be read instead as values, they are hopelessly unrepresentative of a modern European set.

Alongside this criticism of the DCFR product, Hesselink expresses concern about the way in which the views of a small group of scholars seemed to be unduly influential in generating the shift. If the task was to reduce the stock of principles, the pool of expertise should have been broadened; and if the task was to identify a set of minimum values, an inclusive and representative process should have been adopted. For Hesselink, in its critical foundational respects, the DCFR comes up short as a matter of both product and process.

In his chapter, Hesselink highlights what he takes to be a helpful set of principes directeurs that were drafted in 2008 by a group of French scholars (the so-called ‘AHC-SLC Group’);¹⁰ and—in the same way—he commends the contribution to this volume that is made by Bénédicte Fauvarque-Cosson. Echoing Hugh Collins,¹¹ Fauvarque-Cosson starts by underlining the important role that a European civil code, containing a section on fundamental ‘guiding principles’, could play in building a European civil society and creating a common European identity. In an ideal world, a code with such a cultural mission would cover the entire field of private law. However, Fauvarque-Cosson argues that so long as different areas of European private law are in very different states of preparedness for such an overarching codification, it would be sensible to start with those areas of private law that are most ready for such conversion. Contract law, she suggests, is the area that most invites such codified conversion; and it is her thesis that this is where the work should start and then it can build incrementally.

If we adopt Fauvarque-Cosson’s perspective, then the DCFR seems far too broad in its ambitions. Moreover, even where the DCFR is focused on contract law, Fauvarque-Cosson argues that it is too preoccupied with formulating detailed rules at the expense of more general principles. In this context, she commends the aforesaid AHC-SLC principes directeurs, these highlighting the three general principles of freedom (of contract), (contractual) certainty and (contractual) fairness. Under the principle of fairness, we find more particular principles relating to good faith and fair dealing, cooperation and coherence. In other words, we find in Fauvarque-Cosson’s chapter the case for a cultural project, a project that, starting with a focus on contract law, builds from a handful of representative general principles for the legitimate regulation of transactions.

Setting her critique of the DCFR (together with the revision of the consumer acquis) in the context of the global economic crisis, Brigitta Lurger finds the project poorly focused and caught up in a conservative intellectual tradition that is no longer fit for purpose. According to Lurger, we should not assume that there is no public interest at stake in ‘private law’; and we should not be afraid to reframe our regulatory approach to those legal regimes (for transactions, for property, for families and so on) that have traditionally been gathered together as ‘private law’. Lurger argues that the reshaping of European private law needs to focus on the development of a market law that properly caters for the interests of the vulnerable. Such a body of market law would extend well beyond those discrete marketplace transactions that are the paradigms of traditional contract law; it would view its subjects as citizens with a range of interests, both material and immaterial; and it would take into account the interests of third parties in the environment, in labour conditions, in access to basic goods and the like. Market law, so conceived, should restore trust and confidence, do justice to the complexity of European values and protect the full sweep of consumers against both individual exploitation and systemic compromise of the kind underlying the global financial crisis. Lurger argues that if the world really is to look different after the crisis, then a radical project of regulatory revision, quite unlike the DCFR project, is what it will take.

Fernando Gomez and Juan-José Ganuza also confess to certain scepticism about the project of harmonising private law in Europe. Taking a critical economic standpoint, they consider how the process of harmonisation (or, in some cases, unification) occurs (ranging from spontaneous convergence to sustained and purposeful coordination or prescription). According to Gomez and Ganuza, because it is difficult to identify an optimal substance for harmonisation, criticism will tend to focus on the particular mechanisms used to induce harmonisation—and where harmonisation is not left to spontaneous forces—it will be natural to ask whether concerted convergence makes sense. Two of the general arguments against such concerted harmonisation of private law—arguments of a lack of necessity and of undesirability—are reviewed, with the authors concluding that neither argument, a priori, is compelling. Nevertheless, Gomez and Ganuza doubt the economic wisdom of reducing contract and tort law to harmonised codified statements when these are areas of private law that invite a context-dependent and responsive case-by-case legal approach. Although there are difficulties in specifying an optimal content for harmonised private law rules, Gomez and Ganuza sketch an approach that takes account of both technological (cost function) and consumer preference parameters. Depending on how these variables play, the resulting harmonised rules may be in line with some existing standards or they might reflect some intermediate position or they might exceed any existing standards.

In the final two contributions, first, Ralf Michaels and then Roger Brownsword take several steps back from the DCFR to place the attempts to harmonise European contract law in a larger context of legal reasoning and regulatory strategy.

At the heart of Michaels’ chapter is the distinction between two ideal types of legal rationality—one ‘juridical’ and the other ‘instrumentalist’. Whereas juridical rationality reasons from an organised body of legal material, instrumentalist rationality operates by reference to some specified extralegal ends. Whereas juridical rationality responds to private law questions by applying the rules and principles of a particula...

Table of contents

• Cover
• Title
• Copyright
• Introduction
• Contents
• List of Contributors
• Table of Cases
• Table of Legislation and Preparatory Instruments
• PART ONE: THEORETICAL FOUNDATIONS
• PART TWO: POLITICAL FOUNDATIONS
• PART THREE: MULTI-LEVEL STRUCTURE OF PRIVATE LAW
• PART FOUR: ENFORCEMENT AND COMPLIANCE
• Index