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COMPARATIVE LAW
PRIVATE LAW
LESSON 1. FUNDAMENTALS OF COMPARATIVE LAW
We study comparative law to be able to understand and apply other systems that may help with our legal system. Google forms
- Comparative Law is the comparison of the different legal systems of the world. It is a study of the relationship between legal systems or between rules of more than one system. TRUE Spanish or Italian legal systems are part of civil law family.
- Comparative Law is a part of private law that deals with situation in which there is a possible conflict of applicable laws. FALSE
- The studies that analyse the solutions given by various systems for a legal problem are Comparative Law. TRUE
- In macro comparison level, instead of concentrating on individual concrete problems and their solutions, research is done into methods of handling legal materials, procedures for resolving and deciding disputes or the roles of those engaged in the law.
- Different purposes are ascribed to Comparative Law: it should inform national lawmaking, assist judges in the resolution of difficult questions, provide a basis for legal unification or harmonization, or simply increase knowledge and extend awareness, especially in legal education. TRUE
- Comparative Law started in that area of law where unification is most urgently called for: criminal law. FALSE It started in private law: in civil law and commercial law. The authors began to study comparative law because there weren’t borders in this area and needed laws.
- The legal transplants that transfer legal rules from one jurisdiction to another in order to save time and the expensive process of developing an original solution are called: externally dictated transplants. FALSE we have different legal transplants; they exist because is easier to copy one jurisdiction of another country. There are different problems: language, history of that rule… Legal transplants: when we transfer a rule to one jurisdiction to another one.
- Private law comprises civil law and criminal law. FALSE it comprises civil law and commercial law.
- One of the aims of comparative law is to increase harmonization. TRUE Harmonization means to have similar rules to solve a problem. If we know how other systems lead with our needs it is easier to find a similar regulation.
- There are shared problems or needs in all the societies under comparison. The means of solving these problems may be different but comparable. TRUE and FALSE there are two different methods that are in conflict which are: functionalism (there are shared problems or needs in all the societies under comparison. The means of solving these problems may be different but
comparable) and postmodernism. Legrand thinks that it isn’t possible to share the same problems because every territory has his own methods. WHY DO WE STUDY COMPARATIVE LAW? In the natural and medical sciences , and in sociology and economics , as well, discoveries and opinions are exchanged internationally (no sense “German physics”, “British microbiology” or “Canadian geology”). These branches of science are international and the contributions too. The position of legal science is different: Roman law was the essential source of all law on the Continent of Europe, and similar unity in the Common Law in the English-speaking world. On the European continent, however, legal unity began to disappear in the eighteenth century as national codes were put in the place of traditional Roman law. The consequence was that lawyers concentrated exclusively on their own legislation, and stopped looking over the border. They wanted to study only the legislation that was applicable to their country. At a time of growing nationalism, this legal narcissism led to pride in the national system. Germans thought German law was the best one, and the French thought the same of French law: national pride became the hallmark (“sello de calidad”) of juristic thought. For all this reasons Comparative law started to put an end to such narrow-mindedness. (“estrechez de miras”) A CONCEPT OF COMPARATIVE LAW A) What is comparative law? Comparative Law is the comparison * of the different legal systems of the world (at least, two). It is a study of the relationship between legal systems or between rules of more than one system. *What does “compare” mean? discovery, explanation and evaluation of similarities and differences Comparative Law can be said to describe the systematic study of particular legal traditions and legal rules on a comparative basis. What is the nature of comparative law? a) it is a branch of a law, like “family law” or a “property law”? b) is there any identifiable body of rules known as “comparative law”? No. It does not have a core content of subject areas and does not denote a distinct branch of substantive law. Comparative Law is a method of study rather than legal body of rules. B) What is not comparative law Comparative Law is NOT: × Private international Law (conflict of laws) → part of private law that deals with situation in which there is a possible conflict of applicable laws. × Public international Law (international law) → the body of law that governs relationships between States. × Legal history → is a vital precondition to the critical evaluation of the law and understanding of the operation of legal concepts. Comparative legal history is “vertical comparative law” and the comparison of modern systems is “horizontal comparative law”.
2. To group of legal systems (legal families). 3. To broaden the mind of the law student. 4. To legislate law reform. 5. To provide a tool of interpretation for judges in case of gaps in national law. 6. To draw up of international conventions and agreements. 7. Harmonization of law. METHODS OF COMPARATIVE LAW A) Methods What is “ method ” mean? A means (un medio) of obtaining data – information classified into usable conceptual units – and a means of ordering and measuring data. Observation, documentary research, sample surveys, statistical operations, context analysis and in-depth interviews are all methods. (Roberts, 1972). Kamba (1974) suggests that there are three main stages involved in the process of comparison: a) The descriptive phase description of the norms, concepts and institutions of the systems concerned and the examination problems. b) The identification phase identification of differences and similarities between the systems being compared. c) The explanatory phase account the resemblances and dissimilarities between systems, concepts or institutions. Conclusions. Kamba (1974) (NO ENTRA) Phase 1 Identification of the problem. Phase 2 Establishing the primary sources that may be needed. This may involve the examination of the code/statute, and any commentary about it as well as any judicial decisions on the law. The gathering and assembly of the material. This should include primary and secondary sources of law. The organization of the material in accordance with the legal philosophy and ideology of the legal systems being compared. This may also include the hierarchy of sources. The mapping out of possible answers to the problem, comparing the different approaches, noting possible cultural differences, different legal interpretations, socioeconomic factors and any non-legal factors. The question of how the rule really operates should be posed throughout the investigation. Phase 3 This would involve a critical analysis of the legal principles in terms of their intrinsic value rather than with any perceived expectation. This would include a conclusion in a balanced manner. There are different methods but we are going to study these two: 1. Functionalism method → Basic method of comparative law. The idea is that if one knows the proposes of the functions of a rule, can consider how well or bad the rules serves to that porpoise. Societies share same needs, problems, probably good solutions abroad. The legal system if every society faces the same problems and solve them by different means but very often this means of solving the problems give similar results. 2. Postmodernism → his followers think that law as a culture. Differences between countries. No need of harmonization. B) Functionalism method
Law responds to human needs and therefore all rules and institutions have the purpose of answering these needs. There are shared problems or needs in all the societies under comparison, that they are met somewhere in the society and that the means of solving these problems may be different but comparable, ther functions are equivalent. The functionalism answers these questions: a. Which institution in system B performs an equivalent function to the one under survey in system A? b. How is a specific social or legal problem, encountered both in society A and society B, resolved? c. Which legal or other institutions cope with this problem? C) Postmodernism Postmodernism highlights differences and is only interested in what makes legal systems different. Postmodern comparative law does not emphasize the links between legal systems and institutions, but rather the differences between them. Pierre Legrand (among others) has written against harmonization of law in Europe because he says that European legal systems are so different that they can’t be harmonized. Reasons of agreement and disagreement with this theory:
Age of Humanism: there were more serious attempts at comparative legal analysis. Struve and Stryck with their comparisons of Roman and German private law. SE POSEN SERIOS I FAN INTENTS DE C.L Comparative Law as a science: Comparative law, as it is practiced today , started in the mid-nineteenth century (c. XIX) in Germany. Legislative comparative law in Germany grew with the movement for the codification and unification of law within Germany. It started in that area of law where unification is most urgently called for: commercial law. Later, the same happened with Criminal Law and Civil Code. In 1900 there was the first International Congress of Comparative law in Paris. It was the starting point of Comparative Law as a science. LEGAL TRANSPLANTS A) Legal transplants Concept of “ legal transplants ”: the transfer of a legal rule from one jurisdiction to another (Alan Watson, 1974). The transfer of an item of law from one legal system to another. It’s easier and cheaper to copy an existing rule than to reinvent the wheel. Borrowing from another system is the most common form of legal change. Foreign ideas have been copied in most areas of private, administrative, constitutional, social security and even criminal law. The phenomenon of transplantation is not restricted to the modern world. The earliest known cases: laws of Eshunna, the Babylonian Code of Hammurabi and Exodus. Legal transplantation has a long history. Some examples: Roman law in Europe. English law through the colonies of the British Empire (even in parts of USA). French Civil Code in other civil law systems in Europe and abroad. The spread of American Law to Europe, especially in places such as Switzerland. Typologies of legal transplants (by Miller):
1. Cost-saving transplant : copy an institution or a regulation from elsewhere in order to save time and the expensive process of developing an original solution. COPIAR PEGAR 2. Externally dictated transplant : imposition by a foreign entity or government. TE LO IMPONEN 3. The Entrepreneurial transplant : effort of individuals or groups to introduce and encourage some foreign regulations in the own one. GRUPS VOLEN INTRODUIR NORMES EXTRANGERES 4. Legitimacy-generating transplant : transplant from a developed country to a developing one, sometimes even one with rudimentary legal institutions. TRANSPLANT DE UN PAIS DESEN A UN SUBDESEN Difficulties of transplant: Translation of foreign legal language. The technical incorporation of a new rule into the existing corpus of law. The harmonization of substantive rules with the underlying law of procedure. The interpretation of the transplanted rule in a different legal and cultural context. I.e. Albania. The law of insolvency was introduced despite the almost total lack of commercial lending and is therefore irrelevant (Channell, 2005). I.e. When the Ottoman government tried to import French company law, they failed to enact some essential parts of the French legislation because they forgot that it was in the French civil code and not in the commercial code, that the main regulation of commercial companies are to be found.
PRIVATE LAW
Private Law : Relations between people → not between people- administration or between administrations. Two main disciplines: 1.Civil law strictu sensu (do civil) (family law, contracts law, successions…) 2.Commercial law (do mercantil) (companies, contracts, entrepreneurs). VA COMENÇAR AMB AQUEST Comparative law firstly started in commercial law. The Law of contract has long been one of the core subjects of comparative law. Contracts → central role for the ordering of market relations. Importance of private agreements for the ideology of individual autonomy. Similarities and differences in Private Law (civil law vs. common law): Process → under civil law, almost everything in writing and, under common law almost everything can be orally explained. Interpretation and explanation → in civil law countries, the judge will interpret and explain the applicable law and in the common law system the judge will interpret and apply precedents. Contracts: civil and common law approaches to contracts o Similarities → centred around common topics: contract formation, non-performance and remedies, interpretation, change of circumstances, mistake, deceit and duress. o Differences → doctrines of cause and consideration, the underlying conceptions of breach, the emphasis on specific performance versus payment of damages... In common law the will of the parties and what they have agreed (freely and willingly). Liberty of form, principles of good faith. The entire contract will be built by the parties with a minimum intervention of the law. In civil law system , all types of contracts (contract of sale, lease, donation, etc.) are regulated and listed in a code (or law). Most of the contracts have many formalities regulated by law that must be fulfilled if not the contract shall be unenforceable and invalid. Comparative Family Law Family Law : the area of the law that deals with family matters and domestic relations (marriage, relationships, parental responsibilities, childhood rights, divorce, same sex relationships. Family law concepts are especially open to influence by moral, religious, political and psychological factors; family law tends to become introverted because historical, racial, social and religious considerations differ according to country and produce different family law systems (Mü ller- Freindfels, 1968) “Principles of European Family Law”: set of rules in the field of parental responsibilities based on respect for the rights of the child, non- discrimination and, as far as possible, self-determination. Comparative Commercial Law Commercial Law : the law relating to the facilitation and regulation of commerce. Common law: transactions / Civil Law: transactions, institutions, companies and partnerships. Within traditions: law governing all types of transactions / Business-to- business transactions (B2B) The importance of commerce :
- “An efficient legal system which protects property rights and facilitates transactions is essential for commerce.”
- “Differences in commercial law are inefficient, and they can and should be removed by harmonisation.” Commerce is not affected (like others) by cultural attitudes. Business people everywhere just want to make money.
c. Especially distinctive institutions d. The kind of legal sources e. Ideology a) Historical background and development. The common law was developed in and by the courts, giving judge-made law considerable weigh. Civil law was formulated, compiled and refined in universities , later codified and then given statutory force by the legislature. Roman law , with its notions of codification, systematisation of concepts into categories, principles and divisions of law, has left its lasting imprint on the French and German Codes. Socialist legal systems were born in Eastern Europe and the former Soviet Union and followed Marxist-Leninist origins and ideology. Germany, Austria and Switzerland took no part to the expansion of the French Civil Code. The development in German-speaking countries in the 19th century of a formal legal technique with extremely clear-cut concepts. Colonialism : i.e. American jurisdictions origin is found in British colonialism. b) Predominant and characteristic mode of legal thinking. Civil law : use abstract legal norms , have well-articulated system containing welldefined areas of law, and use to think in juristic constructions. Common law : court based approach , seeking pragmatic answers to issues before the court. The Englishman improvises, never making a decision until he has to “we’ll cross that bridge when we come to it”. (Maitland). Case-law proceeding. The doctrine of precedent. Recent trends have indicated that the common law and civil law systems have been coming closer together in their use of case and statutes (i.e. The United Kingdom Children Act 1989). Socialist law : is based and developed on Marxist-Leninist ideas. c) Especially distinctive institutions. In Common law jurisdictions, the typical legal institutions are agency, trust, tort principles, consideration and estoppel. In the Romanistic family there is a tendency towards formalism and rules protecting the moral and economic integrity. Institutions as: the direct action, oblique action and abuse of right. The Germanic family: abstract real contract, clausulae generales, the notion of unjust enrichment... Socialist legal systems: different types of ownership, unique notions of the role and status of contract in a planned economy, the duty to rescue, ... d) Sources of law. Differences between methods of interpretation, court structures and procedures. The primary source of law in civil law countries: codified or enacted law, whereas in common law countries it is still predominantly case law. Other criteria must also be taken into account (...) e) The ideology. Religious or political conception of how social or economic life should be organized. Islamic and Hindu law offer examples of this. This is not a factor which helps us distinguish between the various “Western” legal systems; here other criteria must be sought
A possible classification of legal families of the world:*
- Civil law : - Romanistic : France, Italy, Spain, Portugal, South America - Germanic : Germany, Austria, Switzerland and a few affiliated systems
- Common law : England, Australia, New Zealand, USA
- Scandinavian family (Nordic countries): Sweden, Denmark, Iceland, Norway, Faroe Islands
- Far Eastern Systems : Vietnam, Laos, Cambodia.
- Mixed Systems : Scotland, South Africa, Louisiana, Israel, Puerto Rico 6. Islamic Law : Saudi Arabia, Sudan. *** It is not the only one, there are lots of different classifications. TABLE OF COMPARISON COMMON LAW CIVIL LAW SOCIALIST LAW ISLAMIC LAW OTHER NAMES** Anglo-American, judge-made law Continental, Roman Communist Religious SOURCES OF LAW Judicial interpretation and legislation Code Marxist-Leninism Sacred religious document LAWYERS Control courtroom Judges dominate trials Party members Secondary role JUDGES’ QUALIFICATIONS Former practicing lawyers Career bureaucrats Party members Religious as well as legal training DEGREE OF JUDICIAL INDEPENDENCE High Insulated from regime Courts are an extension of the state Very limited JURIES Often available at trial level Mixed tribunals in serious cases Often used at lowest level Not allowed POLICY-MAKING ROLE Courts share in balancing power Courts have equal but separate power Courts are subordinate to the legislature Courts and other governmental branches are subordinate to the Shari’a EXAMPLES Australia, England, Canada, India France, Germany, Israel, Japan, Mexico China, Russia Saudi Arabia, Nigeria CIVIL LAW COMMON LAW ORIGINS Roman Law Medieval England, after the Norman conquest the King’s
The Code avoids the danger of being too detailed. It gives the courts room the possibility of interpretation. The French Civil Code has never been substituted by another Civil Code: it has been amended (despite the several changes in political regimes) Three original books:
- First book “Des Personnes” arts. 7- - Book two “Des biens et des différentes modifications de la propriété” arts. 516- 710 - Book three “Des différentes manières dont on acquiert la propriété” arts. 711- Main features of Romanistic legal family: Sources of French law:
- Primary sources of law: legislation (enacted law statutes, constitutional law, regulations, the five Napoleonic Codes, general principles of law and custom.)
- Secondary sources of law: the judge, court decisions (jurisprudence), learned annotations of academic writers (doctrine), textbooks, commentaries, monographs by experts… Primary legal methodology: codification. Rigid separation between: - Private law ( droit privé ): rights and duties of private persons and corporations. - Public law ( droit public ): relations to which the State is a party Legal institutions: abuse of rights, direct action and oblique action. Distinction between ordinary courts and the administrative courts. Development of the Law in Spain Middle Ages: “ fueros ”, laws particular to different localities. “ Las Siete Partidas ” c. 13th: law book influenced by Roman sources. The law of the Spanish kingdom until 19th century was called “ The fuero system ”. In the 19th century: plan to unify Spanish private law : - Commercial law was codified 1829 and greatly modernized in 1885 (Código de Comercio) - Código Civil : 1889. This Code, which is still in force, relies heavily on the French Code, specially in the area of the law of obligations, where most of the provisions are a simple translation of the French text. Movement for autonomy : Catalonia, Basque provinces, Navarra, Galicia… These fueral laws are being codified to a basis for the future creation of a private law common to the whole of Spain. 2.2 THE GERMANIC LEGAL FAMILY The origin of Germanic family : Germany In the Middle Ages in Germany there were no central political and judicial organs to lay the foundations of common German private law. No central administrative bodies, no staff of royal officials, no effective royal jurisdiction. The weakness of imperial power in Germany, the absence of a strong system of imperial justice, and the non-existence of an influential class of imperial jurists made it easier for the reception of Roman law. Importance of rationalism movement: the law of reason. Savigny and Pandectism : “ German Historical School of Law ”: Savigny (1779- 1861): Law as a historically determined product of civilization. Law as a product of the formative reason. All true law is customary law, developed and captured. The people’s representatives: the lawyers. Legislation inorganic and unscientific, was no the right way to create a common German law. What was needed was a absorption and cultivation of the legal material which they had and make it grow. The Pandectist School (directed by Savigny).
- Aim: the dogmatic and systematic study of Roman material. One only had to apply logical or “scientific” method in order to reach the solution of any legal problem. - To study all historical sources that had shaped German legal history. The German Civil Code (1900; Later than French Civil Code): BGB (Bürgerliches Gesetzbuch) In language, method, structure and concepts the BGB is the child of German Pandectist School : abstraction, precision and logical symmetry. It is not addressed to the citizens at all, it is addressed to the professional lawyers. (In France, Austria, and Switzerland, ordinary citizens may have the feeling of closeness to their Code: in Germany not even the lawyers does.) Five books: - Book 1 - General Part (common institutions to the whole of private law) - Book 2 - Law of Obligations - Book 3 – Law of Property - Book 4 – Family Law - Book 5 – Law of Succession Main features of Germanic Law: German Law thinks in terms of general principles , rather than in pragmatic terms, conceptualising problems, rather than working from case to case. Codify laws in a comprehensive, authoritative and precise manner – distinguish it from the common law approach. Case law → for interpretation. Now, Constitution as the apex of laws having priority over all other law. FRENCH LEGAL SYSTEM GERMAN LEGAL SYSTEM DATE OF CODIFICATION French Civil Code 1804 German Civil Code 1900 LEGAL STYLE General rules. Interpretation of Courts. More orderly, use more exact, language more precise. LANGUAGE OF LAW To all people. Teach men in broad sense. Clear language to accessible to every citizen. From lawyers to lawyers. INFLUENCE TO COUNTRIES Spain, South America. Austria, Switzerland, Nordic Countries, Eastern Europe. 2.3 THE COMMON LAW The English Common Law system : Origin: England (not Britain) Middle Ages. It was successfully transplanted from England to many countries ( colonization ): Australia, South East Asia, India, Hong Kong, North America, ... Case-based system law. The predominant mode of interpretation: case law (not codes). No codification (no contained in enacted collections of authoritative and prima facie exhaustive rules of law). Typical institutions such: trust, tort law, estoppel and agency. Improvisatory and pragmatic legal style. No substantive or structural public/private law distinction. The English Common Law system : Sources:
- Judicial Precedent or Case Law
2.6 MIXED SYSTEMS Mixed legal system s: Jurisdictions in which is more than one system co-existing with one another: combination of civil law, common law and/or others. Some examples:
- Quebec → Canadian province with French origin. Civil code from European favor but judicial system based in common law.
- Scotland → no civil code but law based in Roman law.
- Lousiana → Civil Code inspired in French and Spanish one but based in common law (USA).
- Israel → courts based in common law but with religious influence. 2.7 ASIAN SYSTEMS OF LAW Eastern systems of law (Chinese and Japanese) Contemporarily usually a mixture :
- of western law and traditional customary law ( Japan );
- of western law and socialist law ( China ). More focused on harmony than justice, reconciliation than adjudication. Less litigatory than in the Western world. Chinese conception of law: Chinese judges have been prepared to ignore the Codes and formalistic laws if they conflicted with more humane Chinese customs. 2.8 RELIGION-BASED SYSTEMS OF LAW Islamic Law: Shariah It is derived from the religious precepts of Islam, particularly the Quran and the Hadith. The term Sharīah refers to God's immutable divine law and is contrasted with Figh , which refers to its human scholarly interpretations. No clear separation of legal, religious or moral standards. Four sources : (The Koran, Sunnah, Ijma, Qiyas) It is in principle immutable , for it is the law revealed by God. Hindu Law : Republic of India, Pakistan, Burma, Singapore and Malaysia, East Coast of Africa… Hindu law applies regardless of nationality or domicile to all persons who are hindus (according to ethnicity and religion). It embraces a great variety of cults and rituals. In Hinduism, law is discussed as a subset of Dharma which signifies behaviours that are considered in accord with rta, the order that makes life and universe possible. Relates mainly to personal laws. (E.i. marriage from different casts.) KAHOOT:
- What is the legal family of UK? Common Law
- In Scandinavian legal family? They don’t have Civil Code
- Which of these authors follow the Law of reason? Savigny
- Custom and practice are characteristics of…? Common Law
- Civil Law is more flexible than Common Law? False
- In Common Law judicial decisions are binding? True, it’s called “precedent”
- Legislation and Codes are from…? Civil Law
- “El caso de abogados contra EJustice”, ¿a qué se refiere el abogado? Precedent
- The man of the video talks about the method of…? Functionalism
- What is Comparative Law? A method of study rather than legal body of rules
- What is the position of Postmodernism about harmonisation of Law? It is against harmonisation of European Law
- The origin of comparative law as a science? In 1900 in Paris with the Congress of Comparative Law
- Quebec is an example of…? Hybrid system
LESSON 3. EUROPEANISATION OF LAW
3. THE EUROPEAN UNION
Political and economic union of 27-member states (Brexit). January 2020 UK not part of EU. Internal single market Free movement of people, goods, services and capital. Common legislation and justice (in some affairs). Common policies trade: agriculture, fisheries, regional development. Monetary union: 19 EU member states. ORIGINS: European Coal and Steel Community (ECSC): Treaty of Paris 1951 European Economic Community (EEC): Treaty of Rome 1957 LEGAL SYSTEM IN EU Treaties (*) (origins: Treaty pf Paris 1951 and Treaty of Rome 1957 Acts: o Regulations become law in all member states the moment they come into force, without the requirement for any implementing measures and automatically override conflicting domestic provisions. o Directives equire member states to achieve a certain result while leaving them discretion as to how to achieve the result. The details of how they are to be implemented are left to member states. When the time limit for implementing directives passes, they may, under certain conditions, have direct effect in national law against member states. Oblies member states to a achieve a result without interfering with how it is achieved. o Decisions offer an alternative to the two above modes of legislation. They are legal acts which only apply to specified individuals, companies or a particular member state. Regulations, directives and decisions are of equal legal value and apply without any formal hierarchy. The Treaties of the European Union are a set of international treaties between the EU member states which sets out the EU's constitutional basis. They establish the various institutions together with their remit, procedures and objectives.
1. HARMONIZATION OF PRIVATE LAW IN THE EUROPEAN UNION: THE POLITACAL INITIATIVES ACTUAL SITUATION IN EUROPE: One of the European Union’s most significant achievements is the single market of 500 million consumers. Its fundamental freedoms entitle businesses and citizens to move and interact freely in a borderless Union. Despite these impressive successes, barriers between the EU Member States remain. They do not always allow citizens and businesses to take full advantage of the single market and more specifically cross-border trade. Many of these barriers result from differences between national legal systems. For these reasons → harmonization THE SINGLE EUROPEAN MARKE T https://youtu.be/1XWOWddn5_ The European Single Market is one of the EU’s greatests achievements Because of it 500 million consumers have more choice, better prices and guaranteed quality and environmental standards. The Single Market treats all member states as one barrier-free internal market without duties, borders or other obstacles. Good, services, capital and people can move freely. The Single Market has already created 2.77 million jobs and generated an extra 233 billion euro of trade each year. It gives us access to the best that EU member states have to offer HARMONIZATION What is? The process of creating common standards across the internal market. Why? Achieve uniformity in laws of member states to facilitate free trade and protect citizens. One difficulty: multilingual structure → need of accurate translations. HARMONIZATIONS vs UNIFICATION Unification: substituting or combining two or more legal systems and replacing them with a single system. We will use unifications for the process that may leave to uniform law, for example, with treaties. This uniform law presupposes that national legal systems will completely disappear and a new uniform law will be applied across Europe. Harmonization: co-ordinate different legal systems by “eliminating major differences and creating minimum requirements or standards”. Is useful to reserve this term for the specific method of legal convergence through the European directives , these leaves diversity to all member states. Harmonization can be seen as a step towards unification. HARMONIZATION OF PRIVATE LAW METHODS:
- Ordinary legislation: (derecho vigente) Regulation: i.e. data protection (Reglamento Europeo de Protección de datos + Nueva LOPD) Directives : i.e. intellectual property, mercantile companies, insurance contracts, unfair trading, misleading advertising, product liability, consumer contracts and electronic commerce. (The preferential use of directives in the sphere of private law helps member states to retain a certain degree of autonomy and flexibility ). More discretion than with regulations.
- Non-binding methods ( soft law ): (derecho académico, por los autores) Aim: convergence of the legal systems of each member state. Tendency to new common European law.
