Vol. 15.1, December 2011


From Comparative to European Law: A Changing Mindset?

In spite of the present – only a few years ago unimaginable – global and European financial crisis, the European integration process seems to increasingly broaden and deepen. The interdependence of capital markets, particularly within the Euro-zone, has led to unavoidable closer economic and political cooperation between the Member-States, even resulting in a new fiscal compact (http://european-council.europa.eu/media/639235/st00tscg26_en12.pdf). Although Member-States would probably have preferred not to transfer any more of their sovereign powers, the European Union has developed from a rather static autonomous legal order to a dynamic autonomous process of developing that legal order. The famous words of Justice Cardozo with regard to United States now also apply to the European Union: “the peoples of the several states must sink or swim together, and (…) in the long run prosperity and salvation are in unity and not division” (Baldwin v. Seelig, 294 U.S. 511, 523 (1935)).

This process also affects legal integration. So much is happening at the same time. Let me mention only a few examples. The draft Common European Sales Law, (http://ec.europa.eu/justice/newsroom/news/20111011_en.htm), initiatives in the area of private international law (see, e.g., matrimonial property, registered partnerships property relations, succession) (http://conflictoflaws.net/2011/commissions-proposals-on-matrimonial-property-regimes-and-property-consequences-of-registered-partnerships/ and http://conflictoflaws.net/2012/european-parliament-adopts-succession-proposal-at-first-reading/).

The European Union was originally established as a common market of coal and steel to create interdependent markets, which should become so “common” and “internal” that any new war among its participants could have no other result but ultimate self-destruction. From the perspective of the individual Member-States it would be a matter of purely self-interest to live together in peace. This highly pragmatic outcome of the integration process was – and it sounds almost like a contradictory in terms – the ideal of the founders. It is intriguing to see how clear the vision of the founders has been and to observe that what they intended now is happening. The markets (no longer just coal and steel, but all markets of the Member-States) have integrated to such a degree that leaving the Union would be disastrous both for the Member-State deciding to do this, as well as for the Member-States remaining within the Union.

The consequence of this process for legal integration is that we are about to enter a stage of paradigm change. No longer should the first question of a lawyer be: What does my national law say? And only then followed by the question: To what degree does European law influence my system? No, the questions should be framed radically different and in a reversed order: What does European law say and how does my national legal system fit into this European structure? Several, for more traditionally trained and oriented lawyers no doubt disturbing, consequences follow from this paradigm change. Let me, first of all, give an example from the perspective of legal practice, which is then followed by an example from the academic teaching of law and legal research.

For traditionally well-established groups of professional lawyers, such as civil law notaries, this paradigm change means that what they consider to be their exclusive physical and functional territory (the nation-state and certain tasks which they historically perform, such as the drawing up of official documents) is now being challenged in light of the ever integrating internal market. From the perspective of that market they are service providers, whose special status can only be safeguarded if certain very strict conditions are being fulfilled. Both the European Commission and the European Court of Justice are becoming rather critical towards legal monopolies, as can be seen in the series of judgments regarding nationality as a prerequisite for the appointment as civil law notary (http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-05/cp110050en.pdf). Notaries fulfil a highly important role with regard to preventive justice and their role should certainly not be underestimated or minimised, but if they will want to be recognised as such they will have to argue why such a role, in spite of an integrated European market, demands their special protection. Formal arguments will have to be replaced by substantive arguments.

From the perspective of legal teaching and academic research this means that law curricula should not only more focus on comparative law, but they should even be put upside down. European law (both its institutional as well as its substantive aspects) should be the starting point for any legal curriculum and national law should be taught as a system functioning within this overall structure. In a contribution for a book on how to educate lawyers in today’s Europe, I have shown how such an approach could look like for the area of property law (Teaching law in Europe: From an Intra-Systemic, Via a Trans-Systemic to a Supra-Systemic Approach, in: A.W. Heringa and B. Akkermans, Educating European lawyers, Cambridge etc.: Intersentia, 2011, pre-published electronically at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1776085).

This is one of the reasons why the Electronic Journal of Comparative Law is about to change its focus. Due to financial constraints, resulting from severe budget cuts, the faculties which sponsored us for so long are no longer able to do so. We are therefore looking for new sponsors and we think that we found them. The end to the sponsoring as it existed until now may then prove to have been a blessing in disguise, as it forces us to reconsider the orientation of the journal. What is the role of comparative law in a world which is ever more integrating? Should not we focus more on integrated (European and global) law and consider comparative law research to be a stepping stone towards such integrated law?

This coming year the Electronic Journal of Comparative Law will published infrequently, but we hope to continue on a more solid basis again in 2013!

This Issue

This issue contains five contributions. Ms Amram discusses attitudes towards the fitness of homosexual parents to raise children and how these attitudes are reflected in and interact with developments in legislation and case law. Ms Bruno offers a comparative survey of constitutional fidelity and fraud. Ms Cahillane describes how the constitution of the Irish Free State has been influenced by post-war European constitutions. Mr Nelissen makes a case for Belgian judges to publish separate opinions, and Ms Ramaekers concludes this issue with a report on the February 2010 conference of the Academy of European Law on cross-border successions. .

Sjef van Erp

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