Monday, 19 December 2011

For no man is an island

Last Friday, the conference 'Towards a European Legal Culture' took place at Trinity College in Oxford. The organisers, Kai Purnhagen (Ludwig-Maximilians-University Munich) and Geneviève Helleringer (University of Oxford), presented a diverse yet well-coordinated programme based on seven sub-themes that highlighted different aspects of European Legal Culture:
- background
- method
- science and education
- the State
- regulation
- law
- the individual

Since it would be almost impossible to summarise the many views and insights on European legal culture that came to the fore in the presentations and discussions, let me just mention some of the most significant, striking, innovative or inspiring thoughts that are of relevance for European (consumer) contract law...
...on systematisation - it may doubted whether this should be considered as an element of European legal culture, in particular given the unsystematic nature of EU (private) law itself, and it would be more helpful to aim at understanding the development of the EU in light of a study of the coming into being of (representative) nation-States in Europe;
...on dogmatism - cultural pluralism itself might be considered to form part of European legal culture and citizens should have the possibility to choose among different (legal) communities, within the boundaries set by the national or European legislature;
...on economics - insights into, for instance, the correlation between what the judge had for breakfast and the judge's rulings can teach us more about the actual effects of legal rules and, therefore, law & economics should be part of the legal curriculum;
...on forms of State - the idea of the 'Market State', based on opportunity, efficiency and consumer choice, can explain developments in several substantive areas of EU law;
...on community-building - considering that historically the nationalisation of laws and legal cultures has served mainly constructivist purposes (e.g. the codification of private law in continental European countries) today's renewed interest in the subject of European legal culture gives the impression of a novel attempt of community-building in a post-national constellation;
...on principles - it might be argued that legal principles form an expression of European legal culture, which may be found in the first place in the national legal orders (diversity), while then having to be evaluated on the level of the EU (unity?);
...on fundamental rights (my topic for the day) - the values reflected in fundamental rights in the EU may form building blocks for a European private law culture, if they are adequately integrated into legislation and adjudication on matters of private law.

Finally, of course, the current economic crisis did not go unmentioned during the various discussions and from that perspective it may be asked whether the debate on European culture is not of a Utopian nature. Then again, maybe we could strive for a more realistic Utopia, as suggested by Habermas? But that is something for further discussion in the next conference, I guess.

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