Harmonisation of European Contract law the Influence of Comparative law

Berger, Klaus Peter

doi:10.1093/iclq/50.4.877

Cited by 13 publications

(4 citation statements)

References 2 publications

Supporting

Mentioning

Contrasting

Order By: Relevance

“…So all of this presents us a flexible image (i.e., a kind actually not binding through its formal character) of law (allowing for ever-changing conclusions being drawn from case to case, based on the various interpretations of cases and standards dependent on context or the criterion of what is purposeful), which is an exact denial of both the classic legal positivism characteristic of our Continental yesteryears as well as that of our Socialist European yesterday, 65 since it overwrites the possibility of imagining a law of "a purely domestic character". 66 Because what it offers instead is merely continuum. 67 It is the most that we could discover today through an ontological reconstruction as a final truth behind the formalism and discipline-obligation of the kinetic processes of law.…”

Section: Practical Continuum In a Standing Fluxmentioning

confidence: 99%

Legal theorising

Varga¹

2009

Acta Juridica Hungarica

View full text Add to dashboard Cite

Abstract. As a legal philosophical overview of the operation of European law, the paper aims at describing the mentality working in it by also answering the query whether the European law itself is to be regarded as the extension of some domestic laws or it offers quite a new and sui generis structure built upon all member states' laws. In either option, the connection between the European law and the composing national laws recalls the embodiment of post modern clichés, as the former's actual working (both purposefully and through its by-effects) exerts a destructive impact upon the bounds once erected by the latter's anchorage in the traditions of legal positivism. In addition, the excellence in efficacious operation of the European law is achieved by transposing the control on its central enactments to autonomous implementation and jurisdiction by its member nations. According to the conclusions of the paper, (1) the (post) positivism as the traditional domestic juristic outlook is inappropriate to any adequate investigation of the reality of European law. As part of the global post modernism itself, the European law stems from a kind of artificial reality construction (as the attempted materialisation of its own virtuality), which is from the outset freed from the captivity of both historical particularities and human experience, i.e., of anything concretely given hic et nunc. At the same time, (2) by its operation the European law dynamises large structures, through which it makes to move that what is chaos itself. For it is the reconstructive human intent solely that may try to arrange its outcome according to some ideal of order posteriorly-without, however, the operation itself (forming its construct and assuring its daily management) striving for anything of order (or ordered state and systemicity). This is the way in which the European law can be an adequate reflection upon the (macro) economic basis to which it forms the superstructure. Accordingly, (3) the whole construct is frameworked (i.e., integrated into one working unit and also mobilised) by an artificially animated dynamism. Concludingly, no national interest can be asserted in it without successful national self-positioning ready to launch it.

show abstract

Section: Practical Continuum In a Standing Fluxmentioning

confidence: 99%

Legal theorising

Varga¹

2009

Acta Juridica Hungarica

View full text Add to dashboard Cite

show abstract

“…There was much debate a few years ago on the highly contested plan for a European civil code or a European code of obligations (Fauvarque-Cosson and Mazeaud, 2003). Since that time, the idea is no longer to impose a uniform code (an undertaking often denounced as impossible and without legitimacy because European court systems are not competent to oversee such), but rather a 'common frame of reference' in the area of contract law, a sort of 'common core' arising out of comparative endeavour (Berger, 2001), having common governing principles, common definitions and, if need be, model rules. 5 This model, originally intended for legislators within the European Parliament, would subsequently be proposed to member-states and even to contractual parties who could make reference to it, and even designate it as the law applicable to their particular contract.…”

Section: Diversity As a Governing Principle For Lawmentioning

confidence: 99%

Towards a Renewed Universalism in Law

Fauvarque-Cosson

2008

Diogenes (Engl. ed.)

View full text Add to dashboard Cite

Despite the phenomena of internationalization and Europeanization, legal process remains essentially national in character. However, certain domains of law are already unified. Focusing mainly on the French tradition and its contribution to the construction of a European legal space, this paper: a) criticizes the traditional methods used to manage diversity in law – unifying the law and co-ordinating those legal codes likely to be conflictual; b) studies the debate between universalism and particularism in private international law, a discipline whose essential object is the resolution of the difficulties derived from pluralism; and c) attempts to discern an appropriate path towards a 'renewed universalism' by pursuing a comparative approach which can open the way towards unification but must also be able to preserve the irreducible diversity of law.

show abstract

“…7 The Lando Commission has produced its “Principles of European Contract Law” (Lando and Beale 2000; Lando 2003), the Tilburg Group has produced similar principles of European Tort Law (European Group on Tort Law 2005; Wagner 2005), the Academy of European Private Lawyers in Pavia has come out with a draft European Code of Contracts (Gandolfi 2001), and the Study Group on a European Civil Code is working away on its draft articles and comparative studies (Von Bar and Drobnig 2004). 8 The project of European private law has reenergized comparative law as an academic discipline (Berger 2001; Reimann 2002), 9 and has given research funding, international recognition, and renewed prestige to private lawyers; the subject has also prompted calls for a “new legal science” breaking down the barriers between any combination of private law doctrine, comparative law, community law, legal history, and international private law (Zimmermann 1995; Joerges 2004).…”

Section: The Enterprise Of European Private Lawmentioning

confidence: 99%

The European Brotherhood of Lawyers: The Reinvention of Legal Science in the Making of European Private Law

Schepel

2007

Law &Amp; Social Inquiry

View full text Add to dashboard Cite

Against the historical backdrop of the codification debate in nineteenth century Germany, this article traces the reassertion of “legal science” as an autonomous source of European legal integration in current legal and political discourse about the harmonization of European private law. The article argues that a grasp of widely shared ideas about the role and function of legal science and legal scientists is vital both toward an understanding of the extraordinary impact of the academic project of a European civil code on legal and political discourse in the Union in particular, and toward furthering the theory of legal fields in general.

show abstract

Harmonisation of European Contract law the Influence of Comparative law

Cited by 13 publications

References 2 publications

Legal theorising

Legal theorising

Towards a Renewed Universalism in Law

The European Brotherhood of Lawyers: The Reinvention of Legal Science in the Making of European Private Law

Contact Info

Product

Resources

About