Friday, 25 November 2011

The unanswered question(s) of ius commune

Yesterday and today, four of the authors of this blog attended the annual conference of the Ius Commune Research School (a cooperation of the law schools of Maastricht, Leuven, Utrecht and Amsterdam, with branches in Edinburgh and Stellenbosch, and some individual members in other universities and legal practice). This year, the event took place in Utrecht and addressed a broad range of questions regarding both private and public law aspects of the possibility of a European ius commune. Here are some impressions...

The key note speeches were given by Katharina Boele-Woelki (Utrecht), Jan Wouters (Leuven) and Martijn Hesselink (Amsterdam):

Boele-Woelki spoke about the different existing and possible future legal regimes concerning property relations between spouses in Europe. She addressed the European Commission's proposals in this field (on these proposals, see also an earlier post on this blog) and commented on the possible ways forward: bilateral agreements, harmonisation (for instance according to the suggestions of the Commission on European Family Law, which reduce the number of regimes to 2 as opposed to the currently existing 5), unification, or the introduction of an optional regime.

Wouters looked into the relations between private law, the EU and global governance. Taking the examples of food safety standards, forest certification (e.g. taking action against the illegal harvesting of timber) and credit default swaps, he argued that the EU legislature can sometimes use standards developed by private bodies to pursue a certain public policy or 'common good' (e.g. the protection of public health or forests in the first two examples), while at other times it will replace these kinds of rules with mandatory legislation in order to serve certain public policy goals (e.g. market integrity in the third example).

Hesselink reflected on the question of how many systems of private law there are in Europe. He focused on the normative dimension of this dilemma, starting from the value of a 'sense of belonging' to a system. At this point, he distinguished between five views: nationalism, Europeanism, cosmopolitanism, dualism (meaning 'normative agnosticism'), and pluralism. He then went on to consider which of these (not mutually exclusive) loyalties could be the right one, and whether it would be possible to determine a hierarchy of values on the basis of them. In his view, the most plausible model for the current state of European contract law would be one of 'Europeanism as post-nationalism and proto-cosmopolitanism' (the latter term being based on the work of Habermas, in particular his new book on Europe's Constitution). Still, other values (especially justice) in Hesselink's view may trump Europeanism and system thinking, which means for instance that (on a less abstract level) an optional Common European Sales Law (CESL) may be a welcome instrument, but should not be pursued at any price.

In the smaller workshops, a wide range of more specific questions related to the idea of a 'ius commune' were discussed. I attended the workshops on 'contract law' and 'constitutional processes'. The first one focused on the merits of the proposed CESL (including the historical background to some rules, the expected usefulness of the remedies in case of non-performance, rules on digital content, and the pros and cons of optional regimes in private law) and considered the likely (economic) effects of the recently adopted Consumer Rights Directive. The workshop on 'constitutional processes' presented some of the research done within the scope of the 'European national and constitutional law' research project (Eunacon) led by Monica Claes, e.g. regarding the foundation of the EU on an 'uncommon principle' of federalism, and the impact of judicial networks (such as international associations of courts) on the development of law and its consequences for the conceptualisation of the constitutional order. Furthermore, attention was paid to the need for and possibility of establishing a constitutional ius commune, taking into account both institutional and substantive aspects of the theme. As Leonard Besselink, who chaired the second part of the workshop, remarked, the fact that this difficult query could not be easily solved did not diminish the beauty one could find in the unanswered question (a proposito, the beauty of the system was one of the values that Martijn Hesselink would refer to in his speech as well). Therefore, what could be a more appropriate ending to this post than a link to the piece Besselink based his observation on? Here it is.

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