Table of Contents |
| List of Contributors | xiii |
1. | The Harmonisation of Private Law in Europe: Some Misunderstandings / Mark van Hoecke | 1 |
| 1. | Introduction | 1 |
| 2. | Law and its underlying legal culture | 3 |
| | 2.1. | The impossible internal point of view | 5 |
| | | 2.1.1. | Cultures are changing | 5 |
| | | 2.1.2. | The integration of cultures | 8 |
| | 2.2. | A different concept of law: no "rules", no "rights" in the common law | 10 |
| | | 2.2.1. | "Rules" or "regularities"? | 10 |
| | | 2.2.2. | Rights or actions? | 10 |
| | 2.3. | A different "time conception" as regards the sources of law | 11 |
| | 2.4. | A different methodology | 12 |
| | | 2.4.1. | Inductive reasoning from facts vs. deductive reasoning from rules | 12 |
| | | 2.4.2. | (Lack of) systematisation | 15 |
| 3. | Conclusion | 19 |
2. | Mistaken Identities: The Integrative Force of Private Law / Burkhard Schafer, Zenon Bankowski | 21 |
| 1. | Introduction: Ceci n'est pas un article | 21 |
| 2. | Comparative law going mental | 22 |
| 3. | Playing games | 26 |
| 4. | On making cont(r)acts | 29 |
| 5. | Mistaken identities | 31 |
| 6. | Playing games and private law theory | 32 |
| | 6.1. | Playing computer games | 33 |
| | 6.2. | Playing the patriot game | 35 |
| | 6.3. | Playing power games | 41 |
| 7. | Conclusion | 44 |
3. | English Private Law in the Context of the Codes / Geoffrey Samuel | 47 |
| 1. | Introduction | 47 |
| 2. | The private and public law divide | 47 |
| 3. | The structure of private law | 49 |
| 4. | Demarcation between contract and property law | 52 |
| 5. | Legal reasoning and harmonisation: from an axiomatic to a post-axiomatic stage | 58 |
4. | The Debate on a European Civil Code: For an "OPen Texture" / Anthony Chamboredon | 63 |
| 1. | Introduction | 63 |
| 2. | An indictment against a European civil code | 66 |
| | 2.1. | The traps of stereotype and "retrodiction" | 66 |
| | | 2.1.1. | A stereotype of a Civil Code | 66 |
| | | | A. | A caricature of a Civil Code | 67 |
| | | | B. | A "de-dialectised" Civil Code | 68 |
| | | 2.1.2. | Traps of "retrodiction" | 68 |
| | | | A. | A hypothetical "retrodiction" | 68 |
| | | | B. | The taking-up of historical discourse | 68 |
| | 2.2. | Codification and jurisprudentialisation, or the oscillation and fragmentation of the sources of law | 70 |
| | | 2.2.1. | The development of a kind of codification in the common law | 70 |
| | | | A. | The historical evolution of the sources of law: towards a codification? | 70 |
| | | | B. | With nuances | 73 |
| | | 2.2.2. | The "jurisprudentialisation" of the French Civil Code | 74 |
| | | | A. | The classical model of the French Civil Code: an "official fiction" | 75 |
| | | | B. | Case Law, an "unofficial" legal source of the French Civil Code | 77 |
| 3. | A plea for the idea of a European contract code with "open texture" | 81 |
| | 3.1. | Topicality of a codification | 82 |
| | | 3.1.1. | Why a codification? | 82 |
| | | | A. | The perils of a decodification | 82 |
| | | | B. | The meaning of codification | 83 |
| | | 3.1.2. | The limits of the current French co-ordination model of "codification" | 84 |
| | | | A. | Methods of codification | 84 |
| | | | B. | Limits of the method of reordering existing law | 85 |
| | 3.2. | For a European contract Code with "open textured rules" | 87 |
| | | 3.2.1. | Doctrinal contributions to a Contract Code with "open textured rules" | 88 |
| | | | A. | A common concept: "open textured European legal rules" | 89 |
| | | | B. | Two examples: the "Unidroit principles" and the "Lando Commission" | 91 |
| | | | | B.1. | Unidroit | 91 |
| | | | | B.2. | The Lando Commission | 92 |
| | | 3.2.2. | Case law's contributions to a European Contract Code with "open textured rules" | 92 |
| | | | A. | A common case law interpretation between form and substance | 93 |
| | | | B. | The "open texture" conception and the restraints in interpretation | 94 |
| | | | | B.1. | The creation of "open textured rules" by the European judges | 94 |
| | | | | B.2. | Open texture and restraints in interpretation | 95 |
| 4. | Conclusion | 97 |
5. | European Private Law: A New Software-Package for an Outdated Operating System? / Alain Wijffels | 101 |
| 1. | Introduction | 101 |
| 2. | The concept of European private law | 102 |
| 3. | European ius commune and legal history | 103 |
| 4. | Ius commune: a legal-historical controversy | 105 |
| | 4.1. | Systematising the law | 106 |
| | | 4.1.1. | Mos Italicus | 107 |
| | | 4.1.2. | Usus Modernus | 108 |
| | | 4.1.3. | Vernunftrecht and Codification | 109 |
| | 4.2. | Ius commune and iura propria | 111 |
| | | 4.2.1. | Ius Commune and municipal law until the sixteenth century | 113 |
| | | 4.2.2. | Usus Modernus and national developments | 113 |
| 5. | Conclusion | 114 |
6. | Studying Judicial Decisions in the Common Law and the Civil Law: A Good Way of Discovering Some of the Most Interesting Similarities and Differences that exist Between these Legal Families / Basil Markesinis | 117 |
| 1. | Introductory remarks | 117 |
| 2. | Similar litigation found in most countries | 118 |
| 3. | Similarities between the systems | 119 |
| 4. | Differences between the systems | 121 |
| 5. | The influence of legal background on the outcome of these cases | 122 |
| 6. | Inductive and deductive reasoning | 125 |
| 7. | Concepts: verbal devices, which formulate judgments but do not really explain them | 128 |
| 8. | Concluding remarks | 132 |
7. | Monism and Dualism within the European Jurisdictions / Francois Rigaux | 135 |
| 1. | Introduction | 135 |
| 2. | The Law of nations (ius gentium), earliest formulation of a European law | 136 |
| 3. | Conflict between internal and international law | 138 |
| 4. | Criticism of the monolithic conception of each juridical order | 146 |
| 5. | The two instruments of European integration | 151 |
| 6. | The delimitation of a private European space | 160 |
8. | The Adjudication of Law and the Doctrine of Private Law / Fritz Jost | 167 |
| 1. | The law, rules and the individual case | 167 |
| 2. | Legal doctrine-dogmatics | 168 |
| 3. | The ingredients | 170 |
| | 3.1. | The elements of legal doctrine | 170 |
| | 3.2. | A case study | 171 |
| 4. | Producing legal dogmatics | 172 |
| 5. | The status of legal doctrine, genesis and problems of application | 174 |
| | 5.1. | Legal Doctrine: not a source of law | 174 |
| | 5.2. | Legal doctrine as an intermediate level | 174 |
| | 5.3. | Doctrinal rules vs statutory rules | 174 |
| 6. | Legal doctrine in Europe | 176 |
| 7. | Conclusions | 177 |
9. | Unfair Terms in Consumer Contracts: An Anglo-Italian Comparison / Paolisa Nebbia | 179 |
| 1. | Introduction | 179 |
| 2. | Means of implementation | 179 |
| 3. | Pre-existing legislation | 180 |
| 4. | Judicial developments | 183 |
| 5. | The impact of the directive | 186 |
| 6. | Concluding remarks | 188 |
10. | Current Problems of Legal Dogmatics in European Regulation: The Principle of Equality and the Policies of Affirmative Action / Jose Garcia Anon | 189 |
| 1. | Introduction: The limits of legal dogmatics | 189 |
| 2. | Some problems of legal dogmatics in the configuration of European law regarding equality: the policies of affirmative action | 191 |
| 3. | The influence of North American antidiscrimination law on European law | 192 |
| | 3.1. | Regulation within the European Union | 192 |
| | 3.2. | From Kalanke to Marschall | 193 |
| 4. | Problems of affirmative action policies in European law | 195 |
| | 4.1. | Lack of precise concepts | 195 |
| | 4.2. | The lack of connection between concepts and terminology of doctrine in relation to national or European norms and judicial decisions | 197 |
| | | 4.2.1. | The problem from the point of view of a European interpretation of law | 197 |
| | | 4.2.2. | The requirements of "tolerated" discrimination | 198 |
| | | | A. | Rights and guarantees | 198 |
| | | | B. | "Tolerated discrimination" | 201 |
| | | | C. | The automatic preference | 202 |
| | | | D. | The uselessness of the opening clause | 203 |
| | 4.3. | Conceptual elaborations with lack of foundation, or with reductive foundations: the problem of concept and conception in European Law | 204 |
| 5. | Conclusions | 205 |
11. | The Kalanke Case and the Marschall Case in the Court of Justice of the European Communities. The Women's Quota and Alexy's Principles Theory / Maria Elosegui | 207 |
| 1. | Introduction | 207 |
| 2. | The concept of affirmative action | 210 |
| 3. | Alexy's theory of principles. Its application to the problem of quota laws for women. Rules and principles | 215 |
| 4. | Individual rights and collective rights | 216 |
| 5. | Collision between individual rights and collective rights | 218 |
| 6. | Subjective rights as fundamental rights and objective norms | 218 |
| 7. | Conflict between a subjective right and an objective norm | 221 |
| 8. | Conclusion | 223 |
12. | The Right to Personal Identity in Italian Private Law: Constitutional Interpretation and Judge-Made Rights / Giorgio Pino | 225 |
| 1) | The right to personal identity: a definition | 225 |
| 2) | Personal rights in general | 227 |
| | 2.1. | The Personalistic Principle in the Italian Constitution | 228 |
| | 2.2. | Personal Rights, or the General Right to Personality? | 230 |
| 3) | A right in the making | 232 |
| | 3.1. | The Object of the Right to Personal Identity | 233 |
| | 3.2. | Cases and Legislation | 235 |
| 4) | Concluding remarks | 237 |
13. | The Power of Aspiration: The Impact of European Law on a non-EU Country / Ireneusz C. Kaminski | 239 |
| 1) | Historical background | 239 |
| 2) | Desperately looking for good patterns... | 241 |
| 3) | ... and making places for them | 243 |
| 4) | Preparing for membership | 248 |
| Index | 253 |