Vol. 4.3, November 2000


EDITORIAL

Restatements of European Family and Succession Law

The ongoing European integration and the growth in the volume of EU regulations in the field of private law increasingly force lawmakers in the member states to take into account in the development of their laws not only the private law of the EU itself, but also the private law of the other member states. On the basis of the activities of the various commissions working in the field of contract and tort law even the drafting of a comprehensive European 'Civil Code' is being discussed, which is to serve as a vehicle for further academic discussion and co-operation, and/or as a European 'Model' or 'Restatement' of private law, and/or as a point of reference for all kinds of future legislative activities by both national and supranational bodies, among them, of course, possibly the EU itself.

The fact that academic activities concerning the harmonisation and unification of family and succession law are to a very large extent lagging behind the activities in other fields of private law is no coincidence. Family law scholars in particular have often postulated a fundamental reservation as regards harmonisation and unification, i.e. that it is impossible to make family law the subject of harmonisation and unification because of the great differences between the national regulations in the different European jurisdictions and the cultural constraint inherent in this legal field. The perception that family law and succession law are unsuitable for harmonisation and unification was so strong that family law scholars stood almost completely in isolation of the efforts made in the other fields of private law.

This has changed only recently. Illustrative of this is that there is no chapter on family law in the first edition of the pioneer work on the unification of private law in Europe entitled Towards a European Civil Code, dating from 1994. The 1998 second edition, however, contains a chapter on family law, written by Dieter Martiny ('Is Unification of Family Law Feasible or even Desirable?'), with the very careful and reserved suggestion that family law could also be involved in the harmonisation process. In the 1999 consultative report by the Netherlands Comparative Law Association entitled 'Een zoektocht naar Europees familierecht' (Searching for European family law), it is submitted that the argument concerning cultural constraint should be put into perspective and, at the end of the 1990s, a whole range of articles appeared, written by German, Belgian, Dutch and British authors, which put forward arguments for and against the harmonisation of family and succession law. The issue of the harmonisation and unification of family and succession law has become one of the 'hottest issues' of comparative legal science. The current state of affairs indicates that the subject matter has grown to such an extent that it transgresses national boundaries. It is my firm belief that the work that has to be done can only be carried out within the framework of a commission with sufficient authority, in which distinguished experts from all the European jurisdictions work together. Therefore, in the field of family and succession law it is necessary to create the same kind of commissions as those which already exist in other fields of private law. A standing Commission on European Family Law should be established.

Currently, there are basically three main options in the field of family and succession law:
1. drafting a European Code;
2. drafting Model Laws;
3. drafting Restatements.
The first option seems too ambitious, and is today neither feasible nor desirable. Drafting Model Laws which can be applied to relationships with foreign elements is feasible only in certain fields of family law where party autonomy is admitted. The third option - drafting Restatements (the rules based on the common core of the different solutions to family law problems provided in the various European jurisdictions) - is the most feasible and practical option. The objective of the Commission on European Family Law should be to elaborate such Restatements. These Restatements could later be used for drafting those Model Laws in the fields of family law and succession law thought to be suitable. Finally, in the long term the work on Restatements and Model Laws can be used for elaborating a uniform family law for Europe. The work of the Commission on European Family Law could be implemented in three steps:
1. assessment of the current state of national affairs concerning the unification and harmonisation of family and succession law in each EU country;
2. selection of the fields of family and succession law that are the most suitable for harmonisation and unification and for drafting questionnaires;
3. drafting Restatements of European Family and Succession Law in the fields selected.

Katharina Boele-Woelki,
Editor



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