DOUBTS ABOUT A �NEW IUS COMMUNE,

Let us listen now to the â€?other voice’ and hear what the pes­simists have to say. In 1992 O. Remien voiced his strong doubts in an article with the significant title â€?Illusions and reality of a European private law’.²⁰ While admitting that in certain fields various national systems had come closer, preparing the way to

¹⁸ R.

¹⁹ K. Luig, â€?The history of Roman private law and the unification of European law’, Zeitschriftfur Europaisches Privatrecht 5 (1997), 405—27.

²⁰ O. Remien, â€?Illusion und Realitat eines europaischen Privatrechts', Juristenzeitung 47 (¹99θ^{, 2}77^-84.

unification, he warned that a comprehensive Europeanization is still in the distant future and has to cope with serious ob­stacles. He detected the beginning of a European legal science in some nuclear topics of Community law, but little else. He saw, however, real progress in contract law and civil procedure. Two years later E. Bucher frankly tackled the main obstacle, i.e. the common/civil-law dichotomy, and stressed the fundamental differences, finding the common ground marginal.^[30] He under­lined the difference between Europarecht, i.e. the positive law of the European Union, and europaisches Recht, i.e. European law as a whole, and warned that yielding to the temptation of minimiz­ing the differences between English and continental law meant denying the way these two legal circles are determined by their histories, which are totally different.^[31] A year later a caution­ary note was sounded by Tony Weir, in an article whose subti­tle — �A skeptical reflection’ — at once betrayed the author’s grave doubts.^[32] His starting point was the importance of language, and he found that many people nowadays underrate the obstacles the language barrier creates between European lawyers; he warned against the �dangers of the unification of the law’.

In 1996 another skeptical note was sounded across the Atlantic. In an analysis of English legal science in the seven­teenth and eighteenth centuries, two American jurists analysed the English acquaintance with the writings of the civilians and found that the use of civil-law terminology by some English writers betrayed merely superficial contacts.^[33] As they put it (p. 494): �It would seem, however, that apart from the name “Institutes” and apart from the use of the words “persons”, “things” and “actions”, there is very little connection between Justinian’s Institutes and the legal writings of Hale, Blackstone, and many other English so-called Institutionalists of the seven­teenth and eighteenth centuries.’

In the same year another transatlantic voice took part in the debate. This time the author was a Canadianjurist, well versed in both common and civil law, and his conclusion was an un­abashed refutation of the optimistic thesis, as appeared from the very title of his article, which stated apodictically �European legal systems are not converging’.^[34] The author certainly echoed the feeling of innumerable continental lawyers when they first come in contact with English law (and vice versa): how is it possible that everything is so totally different? In a cogent demonstration which reveals his familiarity with positive law, legal history and legal philosophy the author stresses the well-nigh insuperable barriers between the law on both sides of the Channel. In his own words (p. 53): �Given the prevalence of such a centrifugal force as nationalistic legal positivism, it is illusory to think that a common law of Europe can arise otherwise, such as through legal education or legal science’, and he rejects (p.

What is the reaction of the practising lawyer to all these argu­ments? From numerous conversations I gathered the following impressions. That one single Europarecht exists is clear, as it is based on the Treaties, the Directives and extensive case law. However, it deals only with disparate and specific issues, often directly linked to the economic problems of the common mar­ket. A European civil code seems unrealistic, as even on small practical points uniform regulation appears extremely difficult (see, for example, aspects of insurance law or remand in custody). The innate English aversion to codification is viewed as an in­surmountable obstacle, and lawyers from the Benelux countries point out ruefully that decades of efforts to unify the law of their three countries have met with very limited success: the Kingdom of The Netherlands has recently introduced a new civil code of its own. It is admitted, on the other hand, that a European sci­ence of private law may be in the making and it is recalled that there used to be for many centuries a ius commune of all European jurists, using one legal language and one set of concepts, notions, categories and fundamental norms. Many continental lawyers vividly remember the cultural shock they felt when they first came into contact with the world of the common law, which, they felt, did not so much work with different concepts, as it seemed not to be conceptual at all. Even if English jurists did study Roman law, they remained loyal to their own traditions, like some famous German philologists who were world author­ities on the French language, but nevertheless went on speaking German.