Document Type

Article

Publication Date

1998

Center/Program

European Legal Studies Center

Center/Program

Center for International Commercial and Investment Arbitration

Abstract

As a member and leader of America's immediate post-war generation of comparative lawyers, Rudolf Schlesinger viewed the then European Economic Community (Community) as an unprecedentedly important arena for the theory and practice of comparative law. He was right in doing so. As we know, the Community initially faced the prospect, among other things, of harmonizing the laws of six continental European countries, representing distinct branches of the European civil law tradition. Then, within a dozen years, the Community expanded to pick up members that stood on the outskirts of the European civil law tradition (Denmark) and squarely within the common law orbit (United Kingdom and Ireland).

For contemporary legal academics (particularly those trained in European law) who were looking to put the theory and instruments of comparative law learning to practical and meaningful use, a better opportunity could hardly be imagined. Legal integration on this ambitious scale promised – or rather threatened – to require a detailed comparison among the substantive laws of the Member States in comparative law's favorite context: law reform. From a substantive law point of view, the Community faced a good deal more than the prospect of aligning their external tariffs. They faced the prospect of a larger convergence. From the start, the notion of a European market without internal barriers raised broad prospects for harmonizing national economic law in a potentially bewildering range of policy areas. It became commonplace for Community law to justify virtually any harmonization measure under article 100 (and later article 100a) of the Treaty of Rome or, if need be, under article 235, the implied powers provision. Thus, the opportunities for law reform through the comparative method, whether practiced among civil law systems or between civil and common law systems, appeared to be practically boundless. It is a small wonder that the Community looked not only like a bold political and economic experiment, but a true comparative law adventure!

This strikes me as a perfect occasion to reflect on the nature of the comparative law enterprise in the Community in which Rudolf Schlesinger played such an important part. I do not purport in these remarks to have formed a view that is in any sense definitive for me, much less for the many others among us who have witnessed and even participated in it. However, I am prepared to venture a couple of ideas.

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