The European Codification Process
Cut and Paste
Published on 1. October 2003
202 pages
978-90-411-8101-5 (ISBN)
Description
This volume contains thoughts on the issue of Codification of European Private Law and on the present state of European Private Law by one of the protagonists of the debate that is unfolding in Europe. Taking a sometimes sharply critical view, Professor Mattei attempts to unveil what he considers biases, strategies, and ideologies that affect the European legal process. The work attempts to open a basic and genuine political debate between legal scholars, which he considers an unavoidable prerequisite of any major reform process in private law. Challenging the claim of technocratic neutrality shared by much of the most influential European legal academy, the author uses the tools of Comparative Law and Economics to set priorities on the table and to show some of the real stakes of the present process.
The work explores fundamental areas of European private law, from the sources, to contracts, to trust law.
The work explores fundamental areas of European private law, from the sources, to contracts, to trust law.
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10/2003
Kluwer Law International
€242.15
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Content
- Cover
- Half Title Page
- Title Page
- Copyright Page
- Table of Contents
- Context and Acknowledgments
- 1. The Comparative Law and Economics Approach to the European Civil Code. An introduction
- I. THE DESIRABILITY OF A CIVIL CODE FROM THE ECONOMIC PERSPECTIVE: FIRST THOUGHTS
- II. THE COMMON CORE HYPOTHESIS: FIRSTTHOUGHTS
- III. A RECENT LINE OF INQUIRY: COMPARATIVE LAW AND ECONOMICS
- IV. POSITIVE AND NORMATIVE DISCOURSES
- V. COMPARATIVE LAW AND ECONOMICS AS CRITIQUE
- 2. The Professional Project: Practitioners
- Part 1
- I. COMPARATIVE OPPOSITIONS AND THE ROLE OF THE LEGAL PROFESSION
- II. THE CONVERGENCE HYPOTHESIS AND ITS LIMITS
- Part 2
- III. UNITARY PROFESSION IN THE COMMON LAW: THE UNITED STATES
- IV. DIVIDED PROFESSION IN THE COMMON LAW: ENGLAND
- V. UNITARY PROFESSION IN THE CIVIL LAW: GERMANY
- VI. DIVIDED PROFESSION IN CIVIL LAW: FRANCE
- Part 3
- VII. CONVERGENCE IN FORM
- VIII. MARKET SPECIALIZATION
- 3. The Professional Project. Scholars
- I. THE CONSERVATIVE STRATEGY
- II. FEARS OF HEGEMONY
- III. TRANSACTION COSTS, PATH DEPENDENCY AND MORE ON THE 'COMMON CORE'
- 4. Postmodern Legal Scholarship and the Codification Process
- I. SETTING THE SCENE: MODERNISM, POST-MODERNISM, AND CRITICAL THINKING
- II. SETTING THE SCENE: DRAMATIS PERSONAE
- III. EUROPEAN CONSERVATIVE IDEOLOGY TRANSFORMED BY THELEFT IN THE US AND RETURNED TO EUROPE?
- IV. RE-INVENTING THE COMMON LAW VS. CIVIL LAW TRADITIONS
- V. MODERNISM, POST-MODERNISM AND CRITICAL THINKING
- VI. A POSTMODERN CIVIL CODE?
- 5. Hard Code Now! A Critique of 'Softness' and a Plea for Responsibility in the European Debate over Codification
- I. POSTMODERN CONDITION AND THE DEBATE OVER THE CODE
- II. THE WHETHER AND THE HOW IN EUROPEAN PRIVATE LAW
- III. SURRENDER TO THE ACTORS OF MARKET GLOBALISATION?
- 1. What is behind such paradigm shift?
- IV. SOFT RHETORIC FOR HARD PRACTICES
- V. IN DEFENCE OF HARD LAW AS A EUROPEAN NECESSITY
- VI. THE ISSUE OF CONTENTS. WHAT'S IN THE CODE?
- 6. Contracts, Schizophrenia and Beyond
- I. ECONOMIC FUNCTIONS OF CONTRACT LAW
- II. THE DISTINCTION BETWEEN CIVIL AND COMMERCIAL LAW
- III. LEGAL FORM, TRANSACTION COSTS AND THE MERCHANT'S PARADOX
- IV. THE EMERGENCE OF SCHIZOPHRENIC CONTRACT LAW IN EUROPE
- V. THRIVING AND DIVIDED SCHOLARS
- VI. PROLIFIC EUROCRATS
- VII. DISTRACTED JUDGES
- VIII. THE VERTICAL VS. HORIZONTAL MISMATCH
- IX. A CRITIQUE OF SUBSTANTIVE CONTRACTUAL SCHIZOPHRENIA
- X. THE CASE FOR EUROPEAN ENFORCEMENT RULES OF CONTRACT
- 7. Should Europe Codify Trust?
- I. INTRODUCTION
- II. THE BASIC ECONOMIC STRUCTURE
- III. THE RELEVANT QUESTIONS
- IV. PRELIMINARY ISSUES OF TRUST LAW CODIFICATION: LEGAL PLURALISM, LEGAL FORMANTS AND JURISDICTION
- V. DRAFTING THE MAP: THE COMMON CORE QUESTIONNAIRE
- VI. WOULD A PERFECT EUROPEAN CODE OF TRUST BE ENOUGH?
- VII. CONCLUSIONS
- Conclusions: What is Missing?
- Back Cover
