THE CHANCES OF LEGAL UNIFICATION
Having taken in all those views, the reader may well wonder what a legal historian makes of it all. I will try and satisfy this cuÂriosity by presenting some reflections inspired by history (I shall afterwards try and explain what my personal position is in the pessimist-optimist controversy).
The question may indeed be asked as to what the chances of a unification of European law look like in the perspective of universal history. My answer would be threefold. Firstly, history shows that in the past new large political formations have tended to evolve legal systems of their34 Ius commune: Thefirst unification of European law own. The whole Roman empire shared one Roman law and the whole Latin Church shared one canon law. Medieval England, which achieved and preserved political unity early on, produced a national â€?common law’. France, which reached political unity much later, made big strides towards a droit commun francais in modern times and finally achieved its aim when Napoleon pubÂlished his Code civil in ι 804. In the course of the nineteenth cenÂtury Germany broke with its past of Kleinstaaterei and developed into a mighty Empire, which duly produced its own national civil code, made effective in the last year of that eventful century. The United States of America share the common foundation of the historic English common law; Louisiana admittedly has not joined this movement, but the common-law pressure on its civil-law roots should not be underestimated.[35]
Secondly we notice, again generally speaking, that legal sciÂence has played a preparatory, pioneering role on the road to unification. For France we need here only to mention the great names of C. Dumoulin, H.-F. d’Aguesseau, F. Bourjon and R.-J. Pothier, who wrote between the sixteenth and the eighÂteenth century and to whom the four authors of the Code civil owed so much.
For Germany, the spade work done by the nineteenth-century Pandectists, who continued the tradition of the usus modernus, had an even profounder impact on the Code of 1900. The great issue there was the opposition between the cosÂmopolitan Roman and the native German tradition, a contest that was clearly won by the former (about this more in chapter 6). Is it too fanciful to compare this contest with the civil-commonÂlaw contest in the European future? And will civil law predomÂinate there, as it did in imperial Germany, but assimilating a substantial common-law contribution ( just as some traditionalGerman law found its way into the Gesetzbuch of ι 900)? Another illustration of the role of jurists in the preparation of legal unity can be found in the American Restatement of the Law. This effort by learned authors to detect and formulate the common foundation of the law of their country has already led to a certain amount of harmonization byway of legislation,[36] and European jurists have not failed to cite America as an example for their own continent.[37]
A third lesson we can learn from past experience is that sciÂence alone is not enough: the political will and political power are essential to bring the work of the scholars to fruition. In spite of the endeavours of the aforementioned jurists, France did not achieve legal unification under the monarchy. There were parÂtial codifications in the form of major royal ordinances, but even the â€?absolute kings’ Louis XIV and Louis XV never achieved legal unification: they overcame neither the strength of the coutumes nor the ancient north-south divide. It took the personal interest and drive of a military dictator to produce the great national codes of the early nineteenth century. Similarly, it was the German lawgiver who in ι 896 put an end to the bickering among the jurists and took the decisive step of the promulgation of one civil code for the whole empire.