Review of Leone Niglia, "the Struggle for European Private Law: A Critique of Codification"

Abstract

By the nineteenth century, modern codification movements had marked an apogee in the emergence of the post-Enlightenment, "Napoleonic" State. If Europe had once been a heap of rival, parochial backwaters, codification would issue from a unified, centralized legislature. If law had once languished in the randomness of custom and tradition, codification promised the rigour of system and logic. Strictly speaking, codification means taking a corpus of existing law in order merely to restate it in some orderly fashion. But if the aim is to overcome inherited gaps and inconsistencies, then codification entails more. It requires selection of the best norms. What counts as "best" then depends on the legislators' broader aims. Do they seek economic competitiveness? Or distributive justice? Or respect for fundamental rights? Or clarity and ease of implementation? The gaps and inconsistencies which the legislators seek to remedy do not necessarily result from sheer oversight. They may reflect rival social interests. Construed as the end product of a legislative act, a code might seek to reconcile those opposed factions through processes of interest-group bargaining-"horse trading". On that model, rival voices would all hash out their differences within the political arena, with experts and legislators then steadily progressing towards an optimal text. One problem, however, is that not all voices will be equally loud in that arena, nor equally welcome. Outright policy choices will be made, even heavy-handedly imposed.