European Private Law after the Common Frame of Reference
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European Private Law after the Common Frame of Reference

Edited by Hans-W. Micklitz and Fabrizio Cafaggi

This book paves the way for, and initiates, the second-generation of research in European private law subsequent to the Draft Common Frame of Reference (DCFR) needed for the 21st century. The book gives a voice to the growing dissatisfaction in academic discourse that the DCFR, as it stands in 2009, does not actually represent the condensed available knowledge on the possible future of European private law. The contributions in this book focus on the legitimacy of law making through academics both now and in the future, and on the possible conceptual choices which will affect the future of European private law. Drawing on experience gained from the DCFR the authors advocate the competition of ideas and concepts.
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Chapter 5: The Draft Common Frame of Reference: How to Improve it?

Jan M. Smits


Jan M. Smits* 1. INTRODUCTION The aim of this contribution is to discuss the view of law and lawmaking underlying the Draft Common Frame of Reference (DCFR).1 It claims that the DCFR suffers from so-called methodological nationalism and therefore fails to adopt the right approach to dealing with private law in the European Union. The theoretical analysis is followed by some concrete suggestions on how to improve the DCFR so that it better meets its intended functions. Section 2 offers a brief introduction to the DCFR. It is followed by an account of what is meant by ‘methodological nationalism’ and how this is applied in law (section 3). Sections 4, 5 and 6 subsequently offer an analysis of why the DCFR is to be qualified as an example of this methodology. This does not mean that the DCFR cannot fulfil a useful role in the present debate, but it may have to be a different role from that envisaged by the drafters. Sections 6 and 7 therefore offer an alternative and differentiated perspective on the way forward in European contract law. 2. THE DCFR: BACKGROUND AND PURPOSE The presentation of the DCFR to the European Commission on 28 December 2007 was the result of four years of work by the Study Group on a European Civil Code and the Research Group on the Existing EC Private Law (the * This chapter benefits from discussion at a workshop at the European University Institute (29 February–1 March 2008). It is a...

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