Convergence, Divergence, and the Middle Way in Unifying or Harmonising Private Law
Annual of German and European Law, Vol. 1, pp. 166-245, 2004
80 Pages Posted: 8 Nov 2005
This paper is inspired by accelerating initiatives by European Union bodies since the late 1990s to harmonise, and perhaps eventually unify, private law - especially contract law (outlined in Part A).
Part B embarks on an "archaeology" of the positions and arguments adopted by some of the main academic commentators in the debate about the harmonization or more thorough-going unification of private law, concentrating mainly on writings before the recent spate of activity in Europe - more clearly driven by various policy agendas. Deep tensions emerge from the corpus of comparative private law scholarship which emerged over the 1990s, fuelled by debates particularly in Europe (Part B.I), but also world-wide (Part B.II). One characteristic of these studies is the focus primarily on convergence: similarities in actual results in particular litigated cases, doctrinal developments, shared legal vocabulary, or the like. Convergence tends to be perceived as occurring in fact, as well as being normatively desirable. The focus is found most strongly among those favoring unification, but also among advocates of a range of harmonization initiatives. Both groups, moreover, share a second characteristic. They direct overwhelming attention to legal rules and solutions, "the law in books" rather than the "law in action", despite some commentators giving lip-service to the latter's importance in comparative research (Part B.III). However, vigorous counter-arguments have been presented which uncover and defend diversity and divergence (Part B.IV). These often arise regarding the Europeanization (or otherwise) of private law, but address or implicate issues in comparative law methodology generally. Most adopt an expansive view of law, sometimes radically so. Despite some notable exceptions, these two main vectors form the sub-structure for a considerable part of the academic debate not only in Europe, but also regarding contract law harmonization at a global level.
Part C then develops a "middle way" forward through this methodological jungle, engaging with broader debates in comparative law theory as well as private law harmonization in Europe. From that broader vantage point, hopefully less constricted by the mundane "bureaucratic politics" of much comparative law activity, as well as recent EU decision-making processes, an Epilogue revisits specific proposals made by the European Commission in 2002 to generate some distinctive conclusions for that particular policy debate.
Keywords: European Union, private law, harmonisation, comparative law
JEL Classification: K00
Suggested Citation: Suggested Citation