Elgar Encyclopedia of Comparative Law, Second Edition
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Elgar Encyclopedia of Comparative Law, Second Edition

  • Elgar original reference

Edited by Jan M. Smits

Written by leading authorities in their respective fields, the contributions in this accessible book cover and combine not only questions regarding the methodology of comparative law, but also specific areas of law (such as administrative law and criminal law) and specific topics (such as accident compensation and consideration). In addition, the Encyclopedia contains reports on a selected set of countries’ legal systems and, as a whole, presents an overview of the current state of affairs.
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Chapter 26: European Civil Code*

Nils Jansen and Lukas Rademacher

Extract

The project of a European Civil Code forms part of the larger process to harmonize European private law (cf. Smits, 2000; Kramer, 2001). It combines two elements that for a long time seemed to have lost any political significance. The first is the idea of unifying private law which, during the 20th century, had been of mere academic interest. The common structures and principles of European private law as well as differences with regard to single rules were the subject of comparative research, not political argument. True, the European legislator has enacted almost 20 directives on matters of private law over the last three decades which are authoritatively interpreted by the European Court of Justice and which have become the subject of scholarly elaboration. However, these directives originate from a legislative piecemeal approach and thus typically concern only limited areas of the law. They aim less at legal unity than at progressive, substantive change. They strengthen the position of consumers and they enhance competition within the common market. But they do not primarily aim to establish unifying structures of European legal thinking. The second element is the Enlightenment’s idea of a codification, a specific historical phenomenon that originated in late 17th-and 18th-century legal science and was often regarded as outdated in the second half of the 20th century. Of course, the Dutch Nieuw Burgerlijk Wetboek was finally introduced as recently as 1992 and the Code Civil of Quebec in 1994. None the less, for many lawyers ‘decodification’, not codification, characterized modern private law: the dissolution of codified law into special statutes, large layers of judge-made law, and special rules for different social groups (cf. Caroni, 2003; but see Zimmermann, 1995).

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