The Authority of the DCFR
AFTER THE COMMON FRAME OF REFERENCE - WHAT FUTURE FOR EUROPEAN PRIVATE LAW?, W. Micklitz, F. Cafaggi, eds., Forthcoming
26 Pages Posted: 12 Sep 2008 Last revised: 28 Nov 2008
Date Written: 2008
The article asks to which extent the academic draft of a Common Frame of Reference (DCFR) could and perhaps should become a text of legal authority for the present and future European private law. It is based on the observation - explained in more detail - that the authority of legal texts has never been determined by political authorities, outside the legal system, alone: the authority of a legal text - legislation, precedent and academic writing - is ultimately decided from within, by the participants to legal discourse and by their attitude towards the texts in question. On the basis of these observations, it is argued that the present proposal for a DCFR should not be furnished with the inner-legal authority of a European reference text. It is not a homogenous text, but a - normatively and systematically - incoherent compilation of divergent "text-masses"; it cannot be understood as a fair restatement of European private law; and it leaves decisive question of the law to the judge instead of deciding them itself; at the same time, it unnecessarily and unconvincingly dogmatises private law.
Keywords: Draft Common Frame of Reference, European Private Law
JEL Classification: K10, K12, K19, K33
Suggested Citation: Suggested Citation