The Struggle for European Private Law: A Critique of Codification

The Struggle for European Private Law: A Critique of Codification

by Leone Niglia

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Overview

The European codification project has rapidly gathered pace since the turn of the century. This monograph considers the codification project in light of a series of broader analytical frameworks - comparative, historical and constitutional - which make modern codification phenomena intelligible. This new reading across fields renders the European codification project (currently being promoted through the Common Frame of Reference and the Optional Sales Law Code proposal) vulnerable to constitutionally-grounded criticism, traceable to normative considerations of private law authority and legitimacy. Arguing that modern codification phenomena are more complex than positivist, socio-legal and historical approaches have suggested over the past two centuries, the book stages a pathbreaking method of analysis of the law-discourse (nomos-centred) which questions at once the reduction of private law to legislation and of law to power and, on this basis, redefines the ways in which to counter law's disintegration and crisis in the context of Europeanisation. Professor Niglia reconstructs the European codification project as a complex structure of government-in-the-making that embodies a set of contingent world views, excludes alternatives, challenges the plurality of private laws and entrenches conflicts that pertain not only to form (codification, de-codification, recodification) but also to dilemmas implicated in determining the substantive orientation of European private law. The book investigates the position of the codifiers and their discontents in the shadow of the codification strategy pursued by the European Commission - noting a new turn in the struggle over the configuration of private law which has taken place since the Savigny-Thibaut dispute of 1814 which this book critically revisits exactly two centuries later. This monograph is particularly aimed at readers interested in exploring the complexities, and interconnections, of the supposedly separate realms of comparative law, European law, private law, legal history, constitutional law, sociology of law and, last but not least, legal theory and jurisprudence.

Product Details

ISBN-13: 9781849462600
Publisher: Bloomsbury Academic
Publication date: 01/29/2015
Series: Modern Studies in European Law , #50
Pages: 196
Product dimensions: 6.14(w) x 9.21(h) x 0.50(d)

About the Author

Leone Niglia is Director of the Centre for European Legal Studies and Reader at the School of Law, University of Exeter.

Table of Contents

Preface and Acknowledgements vii

Prologue 1

I An Argument 1

II Structure 4

1 Code 7

I Advent of the European Code Project (1989 to Today) 7

II Portraying the European Code Project 9

III Genealogy of the European Code-Text: Of Continuity and Discontinuity in European Legal Thought from Lando's Principles to the DCFR 10

A The Great Convergence of Acquis Commun and Acquis Communautaire 15

B Advent of the Principles 20

IV Function of the European Code-Text The Return of Code-based Universalisation and Disciplining 26

A The Proposed Code as a Device for Law's Universalisation 26

B The Proposed Code as a Device for Law's Disciplining 28

V On the Need to Explore the Codification Phenomenon from the Perspective of the Wider Range of Jurisprudential Forces 36

2 Jurisprudence 42

I Introduction 42

II Development of a Pluralist Private Law out of Classical Jurisprudence 47

A Turning Points in History: Politicisation Processes in the Twentieth Century 48

B Into Politicisation I: Of Agency and Techniques (the Legislative Branch) 52

C Into Politicisation II: Of Agency and Techniques (Jurisprudential Vocabularies) 60

III Pluralism Beyond the State: The Development of a European Private Law Jurisprudence out of Domestic Structures 65

A Constitutional Private Law I: ?Low Intensity' 69

B Constitutional Private Law II: ?High Intensity' 72

3 Code vs Jurisprudence 78

I Regimenting the Living Jurisprudence qua Europe's Constitutional Pluralism 85

A Mandatory Rules 87

B Default Rules 95

C Choice 98

D Further Criticism Towards the Proposed Optional Code ? The Code vs Parliaments 102

II Synthesis of the Constitutional Critique 104

A De-constitutionalising Private Law 105

B Re-constitutionalising Private Law 107

4 Jurisprudence vs Jurisprudence 111

I Introduction: The View from Jurisprudence 111

A Code as Nomos: The Jurisprudential Movement behind Codification 118

B Code as Thesis: The View from the Legislature 127

C Code as Nomos-and-Thesis Phenomenon: Between Jurisprudence and Legislation 139

D Divided Nomos: Jurisprudence versus Jurisprudence 148

II Conclusion 153

Epilogue 154

I Of Codification and Critique 154

II Of Codification and its Poverty 159

Bibliography 167

Index 179

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