United in diversity

Different views on the Common European Sales Law, which will be the subject of European parliamentary debate and a vote this week, may be related to ideas about to what extent a common culture underlies legal harmonisation projects in the EU. A collection of essays on this topic, edited by Kai Purnhagen and Geneviève Helleringer and based on a conference they organised in December 2011 (on which we posted earlier, 'For no man is an island'), has just been published. It takes the following perspective:

'European harmonisation efforts such as a European civil code, European constitutional treaties, European principles, and European fundamental rights are frequently criticised for building on or creating a European legal culture that does not exist; in reality what we have is European legal pluralism. Some have argued that the pluralistic structure of European law hinders the development of a community, which is a necessary requirement for a European legal culture. And if there can be no common European legal culture then there is no basis for harmonising exercises. 

The contributors to this book explore in different legal areas whether in fact the contrary is true. Cultural pluralism might indeed be a distinctive feature of European legal culture. Diversity is not something that is in opposition to, but rather constitutes a new, different understanding of European legal culture. The contributions demonstrate in detail how such an approach inter alia in the areas of private, corporate, administrative and constitutional law furthers understanding of a developing European legal culture, how it offers theoretical and doctrinal insights, and how it adds critical perspective.'

More information and a table of contents is available on the publisher's website.

Towards a United State(s) of Europe?

While Father Frost turned Amsterdam into a winter wonderland, trains came to a stand-still and skating fever started rising, a small group of academics gathered at the Oudemanhuispoort (photo by Joasia Luzak) last Friday to discuss the relationship between private law and nationalism. If one has to get snowed in to debate this important topic, who better to do so with than Martijn Hesselink, Guido Comparato (the two organisers of the seminar), Ruth Sefton-Green, Ralf Michaels, Jan Smits and Hugh Collins?

The seminar, which formed the conclusion of a HiiL project, explored the question whether resistance against the Europeanisation of private law on the level of the Member States might be explained on the basis of nationalism. As the organisers framed it:
'If nationalism is the political principle according to which the political and the national unit should be congruent (Gellner) should then not the resistance against the Europeanization of private law, often in the guise of technical arguments, not be regarded as a form of (crypto-)nationalism if such arguments consistently regard the nation state as the most natural locus for private law making? And, on the other hand, if nations are imagined communities (Anderson), construed by men and women over time, should not then the work on a Common European Sales Law and a European Law Institute count as important instances of European national building? Nationalism seems bad, indeed dangerous, in light of the catastrophic role it played in the 20th Century. However, more recently it has been argued that nationalism and liberalism are not irreconcilable (Tamir) and that the solidarity that is needed for a functioning welfare state requires a common sense of belonging that is found in the nation (Miller). Can a similar normative argument be made in favour of liberal private law nationalism?'

For European consumer law, these queries are of great relevance, since their answers may explain some Eurosceptical tendencies in the approaches to EU law in certain Member States and propose ways to overcome these. The presentations of Ruth Sefton-Green and Ralf Michaels highlighted instances of crypto-nationalism (which in some cases were not even very cryptical) in French and English law, taking into account the importance of national culture and language, as well as concerns of democracy and otherness. Jan Smits sought an explanation for nationalism in public choice theory, sketching how the search for homogeneity within a nation-state could serve the maximisation of the interests of actors ('nationalists') within a society, and then exploring whether the nation-state still offered the best framework for the pursuit of these actors' interests. Hugh Collins, on the other hand, welcomed all participants to the seminar to the 'Study Group on Social Justice in European Private Law', emphasising the importance of further consideration of the authority of principles of private law that determine what are just outcomes in economic and social interactions. Martijn Hesselink made a strong case for the newly proposed Common European Sales Law to be considered as a common European model of justice between private parties. On the basis of his analysis, as well as the in-depth research done on the theme by Guido Comparato, it may be argued that pro-European views can be seen as a form of 'Euro-nationalism'. Outlining a constructive approach to the application of fundamental rights in European private law, my presentation during the seminar sought to find support for this thesis in a combination of constitutional and private law theory. As Guido suggested, finally, it may be argued that a broad notion of legal culture is no longer bound to the geographical dimensions of nation-states, but could benefit from 'stepping away from the blurring shadow of the Volksgeist'.

Some pictures of the seminar can be found on the website of the Centre for the Study of European Contract Law. The papers are meant to be published in the European Review of Contract Law later this year.

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.

Towards a European legal culture

The European Law Institute that was inaugurated in June (with a conference on which we posted earlier) has now officially opened its office in Vienna. Commissioner Reding was present at the first working meeting, dedicated to the proposal for a Common European Sales Law, and observed that:

'The European Law Institute will help build a European legal culture. More consistency between Europe's different legal systems will help strengthen mutual trust and our citizens' confidence in the EU's legal system, strengthening confidence in the European rule of law, which is the cement binding the European Union together. It will make the European area of justice concrete and real so that people can exercise their rights and take advantage of the Single Market's opportunities. The Institute will also bring added value to research on how EU law is implemented across the Union. It will engage in projects that will have concrete results for the daily lives of European citizens and legal practitioners.'

As regards European legal culture, the Oxford conference that I referred to in last Friday's post is now being advertised on the website of the Institute of European and Comparative Law.

European (legal) culture & consumers

The best part of my working day today consisted of reading a part of a thesis manuscript dedicated to the cultural dimension of national resistance against the 'Europeanisation of private law'. Having come to the end of the chapter, it seemed interesting to look at possible references to 'legal culture' in the recent proposal for a Common European Sales Law. So here is what I found..

Recital (1) of the proposed Regulation states:
'(...) From the range of obstacles to cross-border trade including tax regulations, administrative requirements, difficulties in delivery, language and culture, traders consider the difficulty in finding out the provisions of a foreign contract law among the top barriers in business-to-consumer transactions and in business-to-business transactions. (...)' (emphasis added)

And the conclusions of the Communication accompanying the proposal say:
'It is also an innovative approach because, in line with the principle of proportionality, it preserves Member States’ legal traditions and cultures whilst giving the choice to businesses to use it.'

It shows that the current initiatives in the field of European contract law steer clear, as far as possible, from interference with the legal traditions and cultures of the Member States. This is confirmed by the fact that the proposed CESL does not include any provisions on topics that generally engage (culturally determined) values, in particular the morality of contracts. It differs in this respect from previous academic proposals for comprehensive sets of contract law rules, such as the PECL and DCFR.

Does this mean that the CESL should be considered not to touch upon any questions of legal culture? Interestingly, in a speech that Commissioner Viviane Reding gave in Leuven in June of this year (on which we posted earlier) she remarked that:
'In the long run, the optional instrument on European Contract Law needs to become embedded in a European legal culture where lawyers, judges and academics progressively develop a joint understanding of the principles of private law as they are common to the legal systems of our Member States and of the evolving acquis communautaire.'

But what then is meant by a 'European legal culture'? In this context, more food for thought can be found in a recent article by Jürgen Habermas on 'Europe's post-democratic era', in which he submits that:
'A Europe-wide civic solidarity cannot emerge if social inequalities between the member states become permanent structural features along the fault lines separating poor from rich nations. The union must guarantee what the constitution of the German Federal Republic calls the "uniformity of living standards". This "uniformity" refers only to a range of variation in social living conditions that is still acceptable from the perspective of distributive justice, not to the levelling of cultural differences.' (emphasis added)

To be continued...

And as a final note here: European legal culture will be the theme of a conference that is being organised in Oxford mid December (more information will follow on this blog), which promises an interesting discussion and - talking about culture & consumers - presents an excellent opportunity to go and see Leonardo in London.