Harmonization of private law in the European Union

Harmonization efforts relating to private law (civil law and commercial law) are not without opposition. Although, it is, doubtlessly, undecided whether or not Europe, in the present moment, needs at all any sort of a unified legal system, it is obvious that harmonization in the field of private law related legislation is unavoidable. However, the way of realization legal harmonization is uncertain. It could take the form in particular of Council regulation, directive and also could be realized via coordinated national legislation.

Roman law (civil law) served as a foundation for the 16th century Legal Humanism and was a goldmine for the rationalist Natural Law doctrines. In the 19th century, Roman law is molded in the spirit of legal positivism primarily through German Science of Pandects (in German: Pandektenrecht or Pandektenwissenschaft), and, finally, Roman law is also an eminent material of the great private law codices. The members of the Accademia dei giusprivatisti europei based on Pavia, among whom we can find experts of Roman law, English Common law, and modern codified private law, in their efforts to codify the European law of contracts, view as their mission the creation of a compromise between the Roman law, primarily based on codified continental private law, and the contract constructions of English Common law. The private law of European countries, no doubt, in different extent and building on different historical traditions, is connected to Roman law (civil law). Taking into serious consideration the significant role of Roman law in the comparative analysis of the evolution of European private law, both in relation to the 28 Member States of the European Union (EU) and to those States being - yet - no Member States of the EU, is justified. 

Resolution EC OJ C 158.400 of the European Parliament of the European Union (EU), adopted on May 26, 1989, requires that Member States make steps toward the codification of private law (both civil and commercial law) of the Member States of the European Union [1]. Accordingly, the European Union, pursuant to this resolution, established a Commission whose task was to develop the framework for the codification of European contracts law or law of contracts [2]. In 1994, another resolution of the European Parliament (EC OJ C 205.518, May 6, 1994), once again called on the Member States to standardize certain sectors of their private law to provide for a uniform internal market [3]. On its 1999 Tampere (Finland) conference, the European Council discussed the question once again. Conclusion 39 of the declaration accepted by the European Council in Tampere emphasizes the necessity of the harmonization (approximation) of the Member States’ private law regulations [4]. The European Parliament passed another, third resolution (EC OJ C 255.1, November 15, 2001), relating to the harmonization (approximation) of the civil and commercial law of the Member States of the European Union [5].

In 1980, almost ten years prior to the adaptation of the 1989 Resolution, a working group, led by Professor Ole Lando of Copenhagen and called the Commission on European Contract Law, was formed, which, sponsored by the European Union, has undertaken the task of developing the principles of European contract law [6]. An international academy (Accademia dei Giusprivatisti Europei) with the seat in Italy, namely in Pavia, consisting of mostly Roman law experts (including professors Peter Stein of Cambridge, who is the Vice President of the Academy, late professor Theo Mayer-Maly at the University of Salzburg, Fritz Sturm at the University of Lausanne, Dieter Medicus at the University of Munich, and late professor Roger Vigneron at the University of Liège), held its first session in Pavia in October 1990. The Academy of Pavia, which became formally in November 1992 the Académie des Privatistes Européens, comprising European civilists and Roman law scholars, enjoying great international reputation and working on the creation of a common European legal system (order), gives home to the Group d’étude pour le droit européen commun (GEDEC) which drafted a Code of European Contracts Law (Code Européen des Contrats) [7]. It has to be mentioned that the Code of European Contracts Law is a (Draft) Code in the proper sense of the term «code i.e. codex».

The proposed Code is modeled after the Fourth Book (Libro Quattro), regulating obligations and contracts, of the Italian Civil Code (Codice civile) of 1942 (which incorporates many aspects of the traditions of the French Civil Code (Code civil) of 1804 and the German Civil Code (Bürgerliches Gesetzbuch) of 1896) and the Contract Code [8] drafted in the 1960s and 1970 s by Harvey McGregor, professor at the University of Oxford, for the English Law Commission [9]. Giuseppe Gandolfi, professor at the University of Pavia, whose achievements in the field of Roman law research are also significant, has played a substantial role in establishing the Academy of Pavia [10].

Efforts to harmonize the legal system (order) of the Member States of the European Union, of course, are not without Peter Ulmer, professor at the University of Heidelberg, for example, is explicitly skeptical with regard to the question of urging harmonization of law of the Member States of the EU [11]. Jean Carbonnier (1908-2003), late professor at Sorbonne (University Paris II), who doubted the urgency, and, even to some extent the necessity of harmonization, expressed similar views with relation to France. It seems that we are witnessing the codification dispute («Kodifikationsstreit») between Anton Friedrich Justus Thibaut (1772-1840) and Friedrich Carl von Savigny (1779-1861) – although, in historical conditions substantially different from the social and legal realities of the 1810 s.

And, although, it is, doubtlessly, undecided whether or not Europe, in the present moment, needs at all any sort of a unified legal system, it is obvious that harmonization in the field of civil (private) law related legislation – even if not in the same extent in every aspect of private law – is unavoidable. However, the way of realization of law harmonization is uncertain. It could take the form in particular of (Council) regulation, directive, etc. and also could be realized via coordinated national legislation [12]. The failure of England and Scotland in 1970 to adopt the unified Law of Contracts that would have been binding in both countries does not contradict the tendency of efforts of harmonization of law in the European Union [13]. Roman law, which constitutes the historical foundation of the unity of law («unitas iuris») in Europe, might have a crucial role in this undeniably long-term process, which could require perhaps several decades of hard work [14].

A circumstance that ensures the prevalence of Roman law is the application of the legal principles of private autonomy and freedom of contract, among other things, in European relations [15]. Doubtless, however, that these legal principles, stemming from Roman law, could become relatively important and relativized in certain areas. This is the situation, for example, in the field of consumer protection (Verbraucherschutz or Konsumentenschutz). The more emphasized and better founded legal protection of the consumer, who is the more disadvantaged participant of commercial relations, doubtlessly relativizes private-autonomy (Privatautonomie) and the legal principle of freedom of contract (Vertragsfreiheit) within a given legal system (order). That is, the directives and council-regulations of the EU, without doubt, indicate certain tendencies that seem to jeopardize the freedom of contract.

In our view, Roman law may play an important role in the uniform, or uniform at least in tendency, European jurisprudence, more precisely, in the development thereof. Throughout Europe, in the age of ius commune, a uniform «legal working method», the so-called stilus curiae («way of sentence-making of judges») predominated precisely through Roman law, which was considered the common language (lingua franca) of lawyers. The uniform stilus curiae following the «nationalization» of legal systems of different States became part of the past. The training of legal professionals, which is becoming more and more international once again, may eventually result in the harmonization of stilus curiae [16].

Roman law played a significant role in both secular and ecclesiastical sectors of medieval societies. Roman law served as a foundation for the 16th century Legal Humanism («Humanistische Schule») and was a goldmine for the rationalist Natural Law doctrines. In the 19th century, Roman law is molded in the spirit of legal positivism (Rechtspositivismus) primarily through German Pandektistik or Pandektenwissenschaft (Science of Pandects), and, finally, Roman law is also an eminent material of the great private (civil) law codices.

The role of Roman law in the sphere of 20th century politics is not negligible, the most conspicuous sign of which is Article 19 of the party platform (Parteiprogramm) of NSDAP (Nationalsozialistische Deutsche Arberteipartei, the German National Socialist Labor Party) adopted on February 24, 1920, supported by the interpretation of Alfred Rosenberg which interpretation may be viewed as «interpretatio simplex». The reception of Roman law, characterized – or rather, stigmatized ‒ as foreign («fremd») to the German people, individualistic, cosmopolitan, materialistic, liberal, advocating solely private interest, appeared as national catastrophe («nationales Unglück») and tragic event («Tragik») in the legal literature of the 1930s’ Germany. It is worth mentioning that Carl Schmitt (1888-1985), in his study entitled «Aufgabe und Notwendigkeit des deutschen Rechtsstandes» (Deutsches Recht 6/1936/), labels Article 19 of the 1920 NSDAP party platform, demands the overshadowing of neglected Roman law through the initiation of «deutsches Gemeinrecht», as «verfassungsrechtliche Bestimmung ersten Ranges» (sic! G.H). Carl Schmitt, however, fails to support his rather peculiar view with legal arguments. Reading the literature of the era in question, it might seem that, quoting the ironic lines of the noted Hungarian legal scholar, Rusztem Vámbéry (1872-1948) regarding the NSDAP’s proposed legislative reform, «the influence of Roman law had infected the puritan intellect of Teutons sipping meth sitting on bear hides in caverns of lost times».

The school of «antike Rechtsgeschichte» completely ignores the afterlife of both jurisprudential and political aspects of Roman law. The advocates of the school of «antike Rechtsgeschichte», hallmarked by the name of Leopold Wenger (1874-1953), fail to consider the fact that for centuries, Roman law has had a major influence on the evolution of European law and jurisprudence. In the case of Roman law, which can be rightly viewed as the «ius commune Europaeum», the followers of this school, still represented by a few existing advocates today, completely disregard the role of Roman law that it plays, as a consequence of interpretatio multiplex, in the development of European law, more precisely, in the legal systems and jurisprudence of European nations. In essence, the view that narrows the possibility of comparison of legal systems of states or peoples on the same socio-economic level, reaches similar conclusions. Undeniable advantage of this approach is, however, the sound foundation of the background of its synoptic view.

On the other hand, this concept limits the possibility of comparison in such a degree that it nearly reaches the outermost boundaries of rationality. The frustration of this view is manifested especially clearly in the works of Ernst Schönbauer (1885- 1966), who restricted the possibility of comparison to the rather narrow territory of comparing the legal systems of ancient peoples that were on the same level of civilization or were ethnically related. This view relates in many aspects to the school of thoughts according to which certain institutions of Roman law are incomparable with certain institutions of contemporary legal systems, because the former is the legal system of a slave-holding socio-economic formation. The followers of this school tend to forget about continuity, which plays an especially important role in the sphere of legal phenomena.

In the last quarter of the 20th century, Professor Uwe Wesel, professor at the Freie

Universität in Berlin, polemizes in his writing titled «Aufklärungen über Recht», published in 1981, about the notion of legal structures, constructions reoccurring time- to-time – Theo-Mayer-Maly writes aptly about the «return of legal constructions» («Wiederkehr von Rechtsfiguren»). The viewpoint concurring with the possibility of the acceptation of reoccurring legal structures, constructions is, naturally, not so radical as to denying the existence of legal structures exclusively linked to a single given socio- economic formation, such as, for example, the vassal relations, which, in itself excludes the acceptation of Roman law as timeless ratio scripta. Of course, it is the sign of déformation professionelle when lawyers overrate the fact, according to which legal transactions (Rechtsgeschäfte) ‒ the expression, legal transaction (Rechtsgeschäft or negotium juridicum), is attributed to Johannes Althusius (1557/63-1638), ‒ or at least a fairly substantial fraction of these legal transactions could be performed by applying the same legal constructions regardless of the time factor. Fundamentally, however, this does not change the fact that the legislation and jurisprudence of recent years, in many countries within and outside Europe, returned more than once even in concrete forms to constructions as well as institutions of Roman law.

The fact of the expanding influence of tradition should not excuse the scholar from the requirement of analyzing the substantive differences and the prevailing economic functions. This is true, for example, although it might seem extreme for the first sight, with respect to the examination of the regulations pertaining to cartels and monopolies or trusts. Roman cartel and monopoly or trust regulation, which is densely woven with the elements of public law (ius publicum), obviously differs, for example, from modern cartel law, yet, the socio-economic forces working in the background – independently from the socio-economic system – are doubtlessly intersect at certain points [17].

The expression ‘reception’, as it relates to Roman law, the meaning of which, if interpreted correctly, is not some sort of «cultural occupation», but, at least in Germany, more like a notion that is equivalent to some kind of a «scientification» (Verwissenschaftlichung) of law. Reception cannot be connected neither to the Charter of the Imperial Chamber Reichskammergerichtsordnung, adopted in 1495, nor the mythical decree of emperor of the Holy Roman Empire, Lothar III fading in the dimness of legends. The reception of Roman law means an intellectual tradition built on Roman legal foundations that only to a small extent relates to a well-defined positive legal system (ius positivum). Reception, defined in this manner, could be traced back centuries, with the conveyance of German lawyers (from Germany) who studied at the universities (studia generalia) of Northern

The signs of reception, i.e., the subsidiary prevalence of Roman law, associated with positive law, became appeared fairly early, in the 11th century. And in the 13th century, elements of Roman law can be found especially in the practice of ecclesiastical courts that often litigated disputes having the nature of private law. According to our view, the influence of the Commentators appears in the latter area, while Roman law, defined as «legal literature», has already been accepted in Germany with the conveyance of the Glossators. Naturally, the division of the influence of Roman law into these two categories does not mean the denial of the importance of the Commentators’ work, that is, the acceptance of Savigny’s concept of viewing them merely as post-Glossators. Reception, however, was not limited to Roman law material i.e. sources but also extended to the acceptance of canon law (ius canonicum) and feudal law (ius feudale) of the Longobards as well. That is how the ius commune = gemeines Recht evolved, as a body of law pertaining to both Common law and private law on the European continent, but divergent from, and competing with, the local law (Landesrecht). The harmonization of the hybrid law-like ius commune and local legal systems, or, with other words, the task of adaptation of ius commune to local conditions was resolved by the so-called legal practitioners (Rechtspraktiker).

The readiness for reception of Roman law, in the function of objective conditions, substantially differs in individual European countries. The level of sophistication of a given country’s (region’s) jurisprudence and political system is crucial with regard to On significant parts of the Iberian peninsula, for example, the conditions in the 13th century are such that Roman law could become the subject of reception in the seven-volume code, the Siete Partidas, of king Alfonso X (the

«Wise»). In Switzerland, in contrast, for reasons that could be attributed primarily to unique political conditions, reception of Roman law in its entirety (receptio in globo or receptio in complexu) was out of question. There is a close connection between Roman law and the so-called «law of the emperor», (ius caesareum, or Kaiserrecht). Roman law serves as the ideological foundation of the renovation of the empire («renovatio imperii») that attain extraordinary importance in the time of the sovereignty of the Hohenstaufen-dynasty. Roman law, more precisely the Roman public law (ius publicum Romanum), is the instrument of the legitimacy of the Holy Roman Empire (Sacrum Romanum Imperium or Heliges Römisches Reich) to be ruler («Herrscher») of the world («Weltkaisertum»). The work best representing the Cameralist school (Kameralistik)

both in its title and substance is Samuel Stryk’s «Usus modernus pandectarum» from the turn of the 17th and 18th centuries [18].

Although, on the one hand, a characteristics of the school of legal Practitioners is excessive focus on German praxis ‒ which results in the distancing from the original sources of Roman law ‒, on the other hand, another characteristics is the casuistic analytical methodology, nonetheless, we can talk about «Science of Pandects» («Pandektenwissenschaft»), for the first time, in connection with the Cameralists (Kameralisten). Connecting the expression «Science of Pandects» to this school is correct in spite of the fact that the school itself – especially, because of the increasing prevalence of particularity in its views – is not capable for progress. Only natural law, unfolding in the 17th century, would be fit to further improve the unproductive «Science of Pandects» practiced by legal Practitioners («Rechtspraktiker»). 

We have to emphasize that Roman law plays an important role in the development of natural law doctrines. The evolution of non-ancient, «modern» natural law (ius naturale or ius naturae), aptly described by Max Weber (1864-1920) as «disenchantment of the world» («Entzauberung der Welt»), is inseparable from the concept of Natural Law («ius natural») of the Romans [19]. The aspiration of Roman law scholars to trace back civil law (ius civile) to natural law (ius natural) is a basic feature of the adherents of the School of Natural Law of the 16th and 17th century. The influence of Roman law also can be found in the Christian-scholastic natural law. In the case of Hugo Grotius (1583-1645), who may be counted as a follower of the rationalist natural law jurisprudence, the authority («auctoritas») of Roman law is associated with its «force based on reason» («imperium rationis»). Roman law plays a cardinal role in the work of Samuel Pufendorf (1632-1694), the author of the highly influential «De iure naturae et gentium libri octo» (1672), who may be regarded as a follower of another secularized school of natural law. The fusion of «Science of Pandects» and natural law had not taken place, which could be explained, on the one hand, with the Common law-like approach of natural law, and, on the other hand, with the philosophical, in other words, non-legal, interests of natural law professors, a fact that could be demonstrated with the example of Christian Wolff (1679-1754) whose studies focused primarily on moral-philosophy (Moralphilosophie).

The fundamental conflict between Usus modernus pandectarum and the school of natural law (Naturrechtsschule or Schule des Naturrechts) could have been only dissolved by the Pandektistik developed in the work of the followers of the School of Historical Jurisprudence (Historische Rechtsschule). The characteristics of Pandektistik, the intention of which was the creation of «the philosophy of positive law» according to Franz Wieacker (1908-1994), include the historical point of view, building on the original sources of Roman law (fontes iuris iuris Romani), the desire of systemization, the development of legal theories, and, finally – as a hoped-for result of all the aforementioned – the partition from legal particularism

(Rechtspartikularismus or Rechtszersplittertheit). In the light of the aforementioned, the law of Pandects of the 19th century, «contemporary Roman law» («heutiges römisches Recht»), should be sharply separated from Usus modernus pandectarum, which was dominated by the elements of particularism.

The law of Pandects («Pandektenrecht») of the 19th century, which after the textbook of Georg Friedrich Puchta (1798-1846), «Lehrbuch der Pandecten», published in 1838, is also called «Pandects», as phrased by the German legal scholar, is the general theory of German private law based on Roman law principles, the function and importance of which is the development and expansion of the bases of the private law system.

Despite the fact that it was developed on German soil, it is not practical to talk about German Pandektistik exclusively, because this school is not equivalent only to the «doctrine of gemeines Recht» (Paul Koschaker), but from the beginning of its developments, it gained significant influence over the borders of Germany.

In this respect, it is sufficient to consider the influence of Pandektistik in England. John Austin (1790-1859), who adopted Jeremy Bentham’s (1748-1832) legal theory, in the analysis of legal terminology, follows the German Pandektistik. Characteristically, he regards Savigny’s «Das Recht des Besitze» as a masterpiece and regards it as the most perfect among all legal works ever written. Thibaut’s work, the first edition of which was published in 1803, titled «System des Pandektenrechts» also had a great influence on him. This work of Thibaut, which had eight editions between 1803 and 1834, influenced English legal scholarship tremendously. Nathaniel Lindley’s book titled Introduction to the Study of Jurisprudence, published in 1845, is the translation of the general part of Thibaut’s aforementioned work. We further refer to the fact that in Sir Henry James Sumner Maine’s (1822-1888) «Ancient Law, its Connection with the Early History of Society and its Relation to Modern Ideas», published in 1861, the influence of Pandektistik could also be shown [20].

The members of the Academy of Pavia, among whom we can find experts of Roman law, Common law, and modern codified private law, in their efforts to codify the European law of contracts, view as their mission the creation of a compromise between the Roman law-based on continental private law, and the contract constructions of Common law. It is a fact that similarities may be found among numerous institutions, constructions of Roman law and English law. It is without doubt, at the same time, that there are essential differences appearing between the views of Roman law and English Common law, which was formed as the result of unique historical conditions. One kind of attributes of Roman law is that it is

«jurisprudential law» («diritto giurisprudenziale») [21] that generally is not associated with the binding authority or force of previous judicial decisions (law of precedents). The interpretation of jurisprudential law, however, could differ depending on what scientific discipline the interpreting scholar follows.

According to Friedrich Carl von Savigny, the unique notion of «jurist’s law» (Juristenrecht) is systematization, or more precisely, a tendency-like aspiration for systemization. This view is especially clearly expressed in his work titled «System des heutigen römischen Rechts». Rudolf von Jhering (1818-1892), who is a declared opponent of legal positivism, examines this problem from a very different angle. At Jhering – primarily in his book titled «Geist des römischen Rechts auf den verschiedenen Stufen seiner Entwicklung» – Roman law, viewed as jurisprudential law, has an actuality with regard to methodology and ideology.

The jurisprudential law-quality of Roman law (ius Romanum) was given emphasize pointedly at Paul Koschaker (1879-1951) in his work titled «Europa und das römische Recht». In Roman law, Koschaker sees an effective category of counter-ideal to legal positivism («Rechtspositivismus») «elevated to absolute heights». Paul Koschaker, viewing Roman law as Juristenrecht, stresses its sharp opposition to English law. English law, clearly, is judge made law that makes the difference between the two legal systems obvious. Roman law could never be viewed in any of the phases of its evolution i.e. history – as law of precedents. In the legal literature, this is pointed out – mentioning only a few examples – by Buckland, McNair, Schiller, Dawson, van Caenegem, Pringsheim, and The jurisprudential characteristic feature of Roman law («Juristenrecht») can be demonstrated in every phase of the development of this legal system (order) [22]. The basis for this, among other things, is that there is an obvious continuity between the pontifical law or jurisprudence and the lay jurisprudence. Examining its judge- made or Common law-like attributes, we have to point to the unique historical development, and not the least, unique ideological characteristics, specificities of this legal system. With relation to the doctrine of «stare decisis», we may refer to some characteristics of the English customary law (ius consuetudinarium). It deserves emphasis that in English law (see, e.g., leg. Henr. IX. 9.) the interpretation of statutes takes place in a fairly elastic manner. The judge is less bound by the statutes, more precisely, by the texts thereof, than by previous judicial decisions. Henry Bracton (1210-1268), the author of «De legibus et consuetudinibus Angliae», is in effect the first – although previously there are signs of this view at Ranulf de Glanvill (died in 1190) – to provide the theoretical support of the vigor of binding precedent. This is shown studiously in the doctrine of «…Si tamen similia evenerint, per simile iudicentur, dum bona est occasio a similibus procedere ac similia» (De leg. f. 1 b).

An important difference between Roman law and English Common law is the Roman legal scholars’ i.e. jurists’ so called ars distinguendi, expressed in some responsa («legal opinions») of legal scholars (iurisperiti or iurisconsulti), the «art» that is capable of distinguishing between the relevant, the legally relevant, and irrelevant. As the result of this ars distinguendi, the high level abstraction capability of Roman legal scholars (iurisperiti or iurisconsulti), which was always denied from Roman law by the communis opinio, clearly demonstrable. Here, we wish to refer to the fact that, oddly, even Fritz Schulz (1879-1957) writes about the Romans’ aversion to abstraction.

In some of the legal opinions (responsa), indeed, only the legally valuable elements emerge, which is in diametric contrast to the relation of ratio decidendi and obiter dicta that, in many cases, melt together and are practically almost inseparable in the decisions of Anglo-Saxon courts. The «art of abstraction» («ars abstrahendi»), already affecting legal scholars working in the pre-classical era i.e. during the last three centuries B.C., constitutes the real demarcation line between the mentality of Romans and the legal thinking of Anglo-Saxons. We have to point out that in some relations, – it is especially valid to the doctrine of «stare decisis», arising with relation to providing binding legal opinions under imperial authority («ius respondendi»), that is clearly a characteristic feature of Roman law – even within Roman law, there are certain signs of the guiding authority of precedent legal-scholarly opinions.

In the domain of Roman law, the question of judicial precedents is significant in the field of its comparison with English Common law. We may examine the significance of precedents based on both legal and non-legal sources. The law of inheritance – besides the law of gifts («donation») [23] ‒, is extremely important in this relation. In the domain of contract law we may mention the compensation (compensation), in which the opinions (responsa) of Roman jurists (jurisconsults) originated in earlier times are given greater weight. This weight, naturally, is expressed through the recognition of the normative authority of certain legal principles i.e. legally binding rules. Furthermore, the problem of «particular law» (ius singulare) is also important with regard to the examination of judicial precedents. Namely, in the case of ius singulare ‒ for example, in relation with a privilege (privilegium) ‒ in similar cases can be interpreted, cautiously, obviously, in light of previous cases i.e. judicial precedents.

The doctrine of «stare decisis» plays a prominent role in the development of modern English law. Naturally, in modern judicature, there is a sharp distinction between ratio decidendi and obiter dicta, that frequently allots judges a difficult task, which fact is often referred to in the legal literature of many – for example, Montrose, Simpson, Derham, Allen, Cross, and Paton. The doctrine of «stare decisis», after all, is attributable to the fact that the most essential element of English law is the decision-making activity of the judge, whom John P. Dawson (1902-1985), professor at Harvard University, rightly called, in this respect, the «oracle of law».

In the development and process of the creation of European private law, convergence plays an increasing role. In the recent legal literature, a number of noted authors, for example, James Gordley [24] and Paolo Gallo [25], write about the relativization of differences between Common law and civil i.e. Roman law, and, what is more, about the disappearance of differences in the sphere of many legal institutions. In the field of contract law, many institutions as well as constructions of continental law (legal systems of the countries located on the European continent) are subject to reception i.e. adoption in English Common law. It deserves attention that with regard to terminology, certain English authors, in connection with English private law, explicitly refer to the role of Roman law tradition [26].

The private law (ius privatum) of European countries, no doubt, in different extent and building on different historical traditions, is closely connected to Roman law. This is more and more obvious in the period of decrease or even disappearance of differences between «legal families» based previously on different ideological and political background.




  1. With regard to the unification in the field of private law and the background of unification in classical i.e. Graeco-Roman Antiquity, see, F. Maroi, Tendenze antiche e recenti verso l’unificazone internazionale del diritto privato, p. 7 sq. and p. 15. (Roma, 1933) With regard to the importance Theophrastos’ Peri nomon, which, in essence, also serves the objectives of harmonization as well as unification of the law of the Greek city-States, see, G. Hamza, Comparative Law and Antiquity, 11 sqq. (Budapest, 1991).
  2. Großfeld B. and Bilda K., Europäische Rechtsangleichung, Zeitschrift für Rechtsvergleichung Internationales Privatrecht und Europarecht 33, p. 426 (1992).
  3. Staudenmayer D., Perspektiven des Europäischen Vertragsrechts. In: Die Schuldrechtsreform vor dem Hintergrund des Gemeinschaftsrechts (hrsg. von R. Schulze and H. Schulte-Nölke), p. 429 (Tübingen, 2001). 
  4. Sonnenberger H.J., Privatrecht und Internationales Privatrecht im künftigen Europa: Fragen und Perspektiven, Recht der Internationalen Wirtschaft 48, p. 489 (2002).
  5. In the working paper drawn up by the Directorate-General for Research entitled The Private Law Systems in the EU: Discrimination on Grounds of Nationality and the Need for a European Civil Code. In this working paper there is a clear reference to the similarities between the legal traditions of the countries of Europe which ultimately outweigh the differences between them. The authors of this working paper are, however, aware of the fact that the large scale harmonisation of Member Sates’ civil (private) law is a politically charged and sensitive
  6. Lando O., Principles of European Contract Law, Rabels Zeitschrift für ausländisches und internationales Privatrecht 56, p. 261 sqq. (1992).
  7. Gandolfi provides with an overview of the activities and achievements of the Academy of Pavia and the working group. Gandolfi, Pour un code européen des contrats, Revue trimestrielle de droit civil p. 707 sqq (1992). Compare with, P. G. Gaggero, Il progetto di un codice europeo dei contratti: l’attività del gruppo di lavoro pavese. Rivista di diritto civile 43 p. 113-120. (1997)
  8. McGregor H., Contract Code drawn up on behalf of the English Law Commission (Milano-London 1993).
  9. Until now, the debates of the Academy and working group of Pavia were published in two volumes. Incontro di studio su il futuro codice europeo dei contratti (Pavia, 20-21 ottobre 1990). A cura di P. Stein (Milano, 1993) and Atti accademici (1992-1994), A cura di P. Stein (Milano, 1996).
  10. The preliminary project plan of the Code Européen des Contracts (Avant- projet) was published in the edition of Professor Gandolfi. See, Code Européen des Contrats–Avant-projet, Livre premier, Ed. G. Gandolfi (Milano, 2002). Compare with, G. Gandolfi, Der Vorentwurf eines Europäischen Vertragsgesetzbuches, Zeitschrift für Europäisches Privatrecht 10, p. 1-4 (2002).
  11. Ulmer P., Vom deutschen zum europäischen Privatrecht, Juristen Zeitung 47, 1 sqq. (1992).
  12. Remien O., Rechtseinheit ohne Einheitsgesetze?, Rabels Zeitschrift für ausländisches und internationales Privatrecht 56, p. 30 (1992) and Illusion und Realität eines europäischen Privatrechts, Juristen Zeitung 47, p. 277 sqq. (1992). Compare with, R. Herber, Deutsche Zivilrechtskodifikation und internationale Rechtsvereinheitlichtigung, Rechtsdogmatik und Rechtspolitik (hrsg. von K. Schmidt), p. 269. (Berlin, 1990).
  13. Tilman W., Kodifikation des Privatrechts in der Gemeinschaft. In: Für Recht und Staat, Festschrift für H. Helmrich zum 60, p. 441. (Geburtstag, München, 1994).
  14. Knütel R., Rechtseinheit in Europa und römisches Recht. Zeitschrift für Europäisches Privatrecht, 2, p. 244 sqq. (1994).
  15. Hommelhoff P., «Europarechtliche Bezüge» im Zivilrecht, Überlegungen zur Gestaltung des akademischen Unterrichts. In: Für Recht und Staat. Festschrift für H. Helmrich zum 60 Geburtstag, München, 1994. p. 
  16. Ranieri F., Der europäische Jurist. Rechtshistorisches Forschungsthema und rechtspolitische Aufgabe, Ius Commune 17, p. 10 sqq. (1990).
  17. Regarding the classification into ‘branches’ of ancient Roman law see, G. Hamza, The Classification (divisio) into ‘Branches’ of Modern Legal Systems (Orders) and the Roman Law Tradition. Annales Universitatis Scientiarum Budapestinensis de Rolando Eötvös nominatae. Sectio Juridica 47, pp. 5-40. (2006).
  18. Hamza , Entstehung und Entwicklung der modernen Privatrechtsordnungen und die römischrechtliche Tradition (Budapest, 2009) pp. 186-185.
  19. Regarding the Romans’ concept of ius naturale, see, G. Hamza, A természetjog értelmezésének problémái: Cicero és a ius naturale [The problems of the interpretation of natural law: Cicero and the ius naturale], Jogtudományi Közlöny 50, pp. 523-529. (1995).
  20. Lombardi L., Saggio sul diritto giurisprudenziale (Milano, 1967).
  21. Hamza G., Sir Henry Maine és az összehasonlító jog [Sir Henry Maine and the Comparative Law], Jogállam, p. 326 sqq. (1998-1999).
  22. Regarding the Roman jurisprudence (legal science), see, A. Földi and G. Hamza, A római jog története és institúciói [History and Institutes of Roman Law]. 18th revised and enlarged edition, p. 84 sqq. (Budapest, 2013).
  23. Dawson J. , Gifts and Promises: Continental and American Law Compared (New Haven and London, 1980). Dawson is also the author of the book The Oracles of the Law (Ann Arbor, 1968).
  24. Gordley J., «Common law» «civil law» Una distinzione che va scomparendo? In: Scritti in onore di R. Sacco I, 559 sqq. (Milano, 1994).
  25. Gallo P., La recezione dei modelli continentali nel diritto inglese delle obbligazioni. In: Scritti in onore di R. Sacco I, pp. 473-494 (Milano, 1994).
  26. English Private Law. I-II. Ed. by P. Birks (Oxford, 2000).
Year: 2014
City: Almaty