The Methodological Impossibility to Create “Autonomous European” Law
Sometimes I am under the impression that legal research is no longer seen as “scientific” if it is not part of an overall interdisciplinary project. A legal analysis without adding economic, sociological, political or psychological aspects is regarded as too abstract to really matter. We have come a long way from considering a “pure theory of law”, advocated by the famous Hans Kelsen, as being a scientific exercise by itself.
Of course, areas such as “law and economics”, “law and sociology”, political science and “law and psychology” can enrich debates that would otherwise focus on – rather theoretical and sometimes merely symbolic – black-letter law analysis. Still, a purely legal analysis can also be very scientific. For me, a striking example is the development of European law. As is well known, concepts used at a European level must be interpreted in an autonomous European way. But what is “autonomous”? Is it really possible to create a mindset aimed at “finding” new concepts, not dependent upon any concept traceable in the laws of the Member States of the European Union?
Let me take as an example the concept of “ownership”. Civil lawyers will immediately understand the concept to mean the most complete right a person can have against all other persons over a thing. Common lawyers on the other hand will consider the word ownership to have a rather loose meaning. If the most complete right concerning land is meant, it will be called “freehold” and if the most complete right concerning a movable is meant, it will be called “title”. Freehold and title, however, are not the same as civil law ownership. If at a European level a concept has to be found which also expresses the maximum amount of rights, powers, privileges and immunities (to borrow terms from the famous Hohfeldian analysis of legal relations), should we then – remember: the concept must be autonomously European! – start looking for a whole new concept, a third way so to speak between civil and common law? This would mean that European law could not even be developed as a mixed legal system, such as can be found in Cyprus, Malta and Scotland. The mixture would not give European law enough “autonomy”, because elements from the various national legal systems could still be traced. However, when developing a third way, how can we proceed without having the alternatives from the various legal traditions, found as the result of comparative legal analysis, in the back of our minds?
Autonomous legal thinking is simply impossible. What we should do when developing European concepts, as has been attempted in the Draft Common Frame of Reference, is, realising the existing diversity, analyse the various aspects and elements of that diversity and from there on build a European concept. In this way, European concepts will not be totally disconnected from the laws of the Member States, and at the same time Member States will not be able to “claim” the concept as “their own” for originating in their national legal tradition. Proceeding in this way, Europe could (and in my view: will) develop into a mixed legal system, or to be more precise: a mixed system sui generis.
When developing projects aimed at the creation of European substantive law, be it administrative law, criminal law or private law, the relativity of autonomous European legal thinking should be borne in mind, not only by those who draft these projects, but also by those who act as referees or have to decide on funding.
With the exception of the Green Paper on the Polish Civil Code (previously published in EJCL issue 11.2) and Zalucki's contribution, all reports published in this special on inheritance law were presented to the 17th International Congress of Comparative Law that was held in the Netherlands in 2006. The reports by Peart and Sagaut have since been updated and the reports by Reinhartz and Hiram previously appeared in the EJCL (issue 11.1 and 10.3 respectively).
In July of this year, American University Washington College of Law, George Washington University Law School and Georgetown University Law Center hosted the 18th International Congress of Comparative Law. In this year's final issue, which will appear in January 2011, the Dutch reports to this Congress will be published.
Sjef van Erp