Chapter 22: Comparative Law and European Harmonisation – a Match Made in Heaven or Uneasy Bedfellows?
Dagmar Schiek* Introduction The title of this chapter maintains a contradictory relationship between comparative law and European harmonisation theories. On the one hand, conventional approaches to comparative law are said to have been revived by common core studies, based on their tendency for universalism (Örücü 2007: 51). Traditional comparative law and European harmonisation thus seem a match made in heaven. On the other hand, approaches to comparative law which stress diversity of socio-legal and cultural contexts of legal institutions may well be sceptical of any mission to use comparative law for finding a best (and possibly uniform) European way to any issue (Nelken 2007:1, 31). Such critical branches of comparative law and European harmonisation may thus appear as uneasy bedfellows. The question behind this is what, if anything, critical comparative law may be able to contribute to a theory of European legal harmonisation. Working towards such a theory, it is worthwhile to consider theoretical approaches to law, among which critical comparative law may have a claim to belong. In relation to comparative law, this chapter does not make any suggestion that this approach to law is sufficient to form a theory of harmonisation. Under Articles 114−115 TFEU, harmonisation (referred to as ‘approximation of laws’) is pursued in order to achieve specific goals, mainly to ensure the functioning of the internal market as defined in Article 26 TFEU. Harmonisation is thus inextricably linked to substantive aims of an economic nature, which are again embedded in wider social, environmental...
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