TOWARDS A �NEW IUS COMMUNE ’?

Before presenting the debate that is raging nowadays on this point, a few preliminary remarks may be appropriate. In general terms a common doctrine, leading perhaps to a common law, should not be too difficult to achieve.

The great stumbling block is, of course, the un-Roman and uncodified English common law. Here learned opinion is di­vided between the optimists, who maintain that England is not as insular as is generally believed, and the pessimists, who are convinced that the gulf between common law and civil law is unbridgeable.

Let us begin with the optimists. They opened the debate with a bang when, in 1992, B. DeWitte and C. Forder edited, under the auspices of the Faculty of Law in the University of Maastricht — a town that was to become famous in the history of European unification - a stout volume entitled The common law of Europe and the future of legal education. Le Droit commun de l’Europe et l’avenir de Pmseignementjuridiquef The general tone of the volume was set by the title of T Koopmans’s article: â€?Towards a new “ius commune”, (43—5¹) and as the coming of this European law was taken more or less for granted, it was normal that the question be posed about how the teaching of this new legal system was organized in various parts of present-day Europe and America and how it was to be conceived in the future.⁷ In the same year P. Ulmer examined the question of a possible transition â€?from a German to a European private law', presented a balanced evaluation of the possibilities and thoroughly discussed the role of the Law Faculties on the road to a European private law, through re­search and teaching.⁸ But it was in ι 993 that the great debate on the â€?English stumbling block’ was opened with an article by the aforementioned R.

^6a Deventer, 1992.

⁷ See, for example, C. Flinterman, European legal education in the future: Some concluding observations (i ι 3—1 8); R. De Groot, European legal education in the 21 st century (7 —30);

K. Lipstein, European legal education in the future: Teaching the �common law of Europe’ (255—63); G. Van den Bergh, Ius commune, a history with a future (593—608). This last author tries to convince Europeanjurists �that it is worth their while to explore their roots again’ and answers in the affirmative the question �whether the efforts to establish a united Europe in the legal field can receive any support from our common heritage’.

⁸ P. Ulmer, â€?Vom deutschen zum europaischen Privatrecht?’, Juristenzeitung 47 (i 992), i —8.

⁹ R. Zimmermann, â€?Der europaische Charakter des englischen Rechts. Historische Verbindungen zwischen civil law und common law’, Jeitschriftfur Europaisches Privat- ^{recht (l} 993), 4^—5¹. law — and particularly the common law — a â€?European char­acter’. The article, which reveals a profound acquaintance with English law, should dispel any notion of it living in isolation. The author clearly believes that â€?we are facing the ambitious task of elaborating a supranational, European legal unity’ and intends to show that English law is not the alien and hard to assimilate â€?foreign body’ in the European concert it is often imagined to be. The writer concludes his contribution, which stretches from the Middle Ages to the nineteenth-century theory of contract, with expressing the â€?hope that his survey of the links between civil law and common law refutes the current notion of the “isolation” of English law’.^{[22] [23]} Havingreassuredhis readers about the presumed outlandish character of English law, Zimmermann proceeded in the following two years to unfold his view on the way â€?European legal unity’ could come about and to assign a major role to Ro­man law in that process. We refer to his articles â€?Roman law and European legal unity’¹¹ and â€?Civil code and civil law.

In i 995 W Van Gerven, a professor of law with a wide ex­perience in the European Court in Luxemburg, published his views on the possibility of a European system of �general prin­ciples of law’.^[25] The question-mark in his title displays the pru­dence of his approach, but does not prevent him from showing belief in the future of a European science exploring the common principles of the law. In contrast to Zimmermann, his starting points are the existing case law and treaties rather than the his­toric ius commune. The following year G. J. W Steenhoff made a plea �for the elaboration of a European legal science’ and demonstrated that the �weakening national differences in style of German, English and French doctrine’ should not prevent this process.^[26] The author reveals a remarkable acquaintance with the three aforementioned traditions and reaches some pos­itive conclusions, without turning a blind eye to reality. He rightly refers to the work of Markesinis, a well-known bridge builder be­tween England and the Continent,^[27] and quotes Lord Bingham’s expectation that England will cease to be a legal island and re­new its historic contacts with �the mainstream of European legal tradition’.^[28]

In 1997 R.

go Ius commune: Thefirst unification of European law law of property in Europe.¹⁸ Like Van Gerven he believes in a unification based on present-day case law, treaties and directives from the European Commission rather than legal science as stepping stones to the future. We can, in fact, distinguish two camps — if the word is not too melodramatic — among believers in legal unification. One puts its trust in a new ius commune and the strength of historic roots and antecedents, the other has less feel­ing for the past and hopes for a piecemeal growth of European unity through the daily work of the courts, the Commission and various political bodies: one could speak of a theoretical and a pragmatic approach.

K. Luig, in an article published in ι 997, tried to build a bridge between these two schools of thought.¹⁹ Indeed he studied the progress towards unification on the basis of the case law of the European Court of Justice, which deals with the reality of ev­ery day, but showed at the same time that in the decisions of Luxemburg a complex body of common European rules, of­ten Roman-based and which never lost their validity, played an important role. Roman law is, in other words, not merely of historical interest, but to many jurists quite simply represents perfection. Luig consequently pleads for the use of Roman law in the preparation of a future European codification, even though certain Roman principles have had to give way to considerations based on modern natural law.