When Law and Culture Collide: The Uniform Application of European Private Law
42 Pages Posted: 1 Mar 2015
Date Written: February 27, 2015
As a consequence of the current fragmented state of the consumer law acquis in the European Union, the European Commission has indicated its desire to move from away from the harmonisation effort that is achieved through directives towards the realisation of uniform law that can be provided by (optional) instruments. In this article, the cultural barriers to the uniform application of legal transfers within the European Union are considered. Through using Japan as a case study, this contribution constructs a method that can both predict and explain the process that a legal transfer undergoes during its transplantation into a foreign legal order. The constructed model employs an interdisciplinary approach by fusing anthropological and legal theory in order to explain the aforementioned process and has as its starting point the role that cultural obstacles play on the mind and actions of those actors who are in the position to ensure or preclude the correct application of a transplanted legal rule. The article concludes that education is the linchpin in determining behaviour and, consequently, which perspective of the three perspectives generate by the model shall be employed; be it enculturation of traditional cultural values or formal education received in schools, universities and working life. Subsequently it is argued that culture is only as powerful as the weight attributed to a concept within the mind of the actor, the deep structures of law and its link with culture are largely irrelevant; therefore, cleavages in the uniform application of Union law will only continue to transpire for as long as actors continue to perpetuate internalised biases.
Keywords: European Union, European private law, legal transplants, uniformity, cultural obstacles
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