On the Need for a Progressive Harmonisation of Private Law in The European Union: The Role of Legal Science and Education

Author:Jerzy Rajski
Position:Professor, University of Warsaw

1. Introduction - 2. The 1800s: Universalism gives way to a national focus - 3. A return to the comparative - 4. The route toward EU harmonisation - 5. The first steps on the road - 6. Today: The Study Group on a European Civil Code - 7. The role of education - 8. Conclusions


Jerzy Rajski

Professor, University of Warsaw

On the Need for a Progressive Harmonisation of Private Law in The European Union: The Role of Legal Science and Education

1. Introduction

Progressive harmonisation of private law in the European Union meets the requirements of contemporary European economy and societies. It appears to be in harmony with the historical process of development of private law in European countries, which have been largely shaped by three major traditions: the Romano-Germanic, the Scandinavian, and the Common Law tradition. This is why it seems useful to preface discussion of the questions under consideration by presenting some remarks on the historical trends of development of private law in Europe in order to show that we may return progressively to our common European roots.

The Romano-Germanic tradition is linked to the renaissance of the idea of law in the twelfth and thirteenth centuries in Western Europe. The new ideas favouring the renaissance of law originated in the centres of culture created in Western Europe, the most important of these being the universities. The university scholars progressively elaborated a common legal science and constantly adapted it to the requirements of a changing Europe. The Romano-Germanic tradition developed on the basis of the progress of a community of culture, independently of any political influences and ambitions.

The mediaeval universities aspired to distil and formulate the essence of justice. The law they taught was presented as a model for social organisation. The basis of this teaching was Roman law and canon law 1 , with the help of which university law faculties attempted to articulate the rules best expressing a sense of justice and a well-ordered society. Systematised and adapted by jurists to the needs of society, the law taught by the university founded on Reason was suited for universal application. The teaching of national law started at the universities in the seventeenth century. Swedish law was taught in Uppsala from 1620, and a chair of French law was created at the Sorbonne in Paris in 1679, but in most countries in Europe the national law was not taught in the universities until the eighteenth century: in 1707 at Wittenberg, the first university of the Empire to teach Deutsches Recht; in 1758 at Oxford; and in 1800 in Cambridge. Until the nineteenth century and the era of national codification, instruction in Roman law remained the main subject in the syllabus in all universities while national law occupied an altogether secondary place. *2

2. The 1800s: Universalism gives way to a national focus

The Natural School of Law elaborated, at the end of the eighteenth century, a new concept of codification, very different from that of earlier compilations. This permitted achievement of the aim of transforming the taught but ideal law into a real, applicable body of law. Codification was conceived as a universal formula and technique serving to modernise and rationalise the law, which put an end to its fragmentation, as well as the multiplicity of customs and other archaisms involved. Thus, it helped to establish principles of a rejuvenated ius commune, adjusted to the circumstances of the European societies of the nineteenth century. However, the decline of the universalistic spirit and the rise of nationalism in the nineteenth century made the true achievement of this aim impossible.

Under these conditions, codification was used as an instrument of 'nationalisation of law', associated with the legislative sovereignty of each national state. As successive European states adopted their own codes, which resulted in fragmentation of European law, the very idea of a European ius commune virtually disappeared.

Nationalism in law-making, judicial decisions, and legal science brought about profound decline in the common European legal culture. University teaching was limited to national law. In their studies and research, writers concerned with doctrine concentrated on national law, showing no interest in foreign law, nor in writings outside the national milieu. Thus, the legal science lost much of its universal value, just as the legal education became particularised and national.

3. A return to the comparative

This picture has progressively changed over the last century. There has been a visible trend toward development of comparative...

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