The New European Legal Culture
THE NEW EUROPEAN PRIVATE LAW: ESSAYS ON THE FUTURE OF PRIVATE LAW IN EUROPE, pp. 11-75, Martijn W. Hesselink, ed., Kluwer Law International, 2002
104 Pages Posted: 13 Nov 2007 Last revised: 8 Apr 2011
Europe is currently facing a shift from a rather formal, dogmatic and positivistic to a more substance-oriented and pragmatic approach to private law. It would probably be exaggerated to speak of a European revolt against formalism. However, it is undeniable that as a result of Europeanisation private law is undergoing a major transformation. Unlike a century ago, in Europe legal culture is undergoing a radical change (at least as far as private law is concerned). The instrumentalist and impressionist approach of directives, the pragmatic style of the ECJ, the subversive role of comparative law with its functional method, the external economic, cultural and political perspectives given by academics, the success of soft law which is based on substantive authority rather than on formal enactment, and the depositivation of legal education as a result of the implementation of the Bologna Declaration together contribute to a new European legal culture that is significantly less formal, dogmatic and positivistic than national legal cultures in Europe have been. The emergence of this new European legal culture is a result of these separate but related developments, and of the Europeanisation of private law in general.
The emerging new European private law and the new European legal culture are definitely less formalist than the classical method of national legal cultures in Europe. Actors in European private law seem to share a much more moderate belief in the powers of abstraction and of concepts. Moreover, they seem to be less concerned with system, and, on the whole, their approach to the law is less dogmatic and less deductive. Private law is regarded more as instrumental to political, economic, social, cultural and other aims, and there is a pervasive use of the functional approach. More generally, the approach to the law is pragmatic: there is more attention to the consequences of rules and legal decisions. There is less belief in right answers and in integrity (making law means making choices, law is politics) and in the necessity and rationality of a given legal system, which is more considered as contingent (e.g. depending on decisions made by politicians in Brussels) and therefore also uncertain. The (external) perspective is frequently more critical. Moreover, there is less positivism and more pluralism: we recognise the relative importance of our national positive laws. There is also less focus on texts; especially on codes, and more on other legal formants, legal institutions, legal actors (lawmakers, 'men of law') and their strategies, in other words on law in action. Finally, European law is not very respectful of traditional boundaries between disciplines (between public and private law, between law and social sciences); it is largely interdisciplinary.
Keywords: European law, European pirvate law, legal culture, legal method, formalism, comparative law
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By Brian Leiter