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ROMANTIC COMMON LAW, ENLIGHTENED CIVIL LAW: LEGAL UNIFORMITY AND THE HOMOGENIZATION OF THE EUROPEAN UNION

7 Colum. J. Eur. L. 63 (2001)

Vivian Grosswald Curran. Associate Professor of Law, University of Pittsburgh. B.A. University of Pennsylvania; M.A., M.Phil., Ph.D., J.D. Columbia University. Unless otherwise noted, translations are mine. I am grateful for financial support in the form of generous grants from Dean David Herring of the University of Pittsburgh School of Law and Professor Alberta Sbragia, Director of the European Union Center at the University of Pittsburgh. I also thank the Deutsch-amerikanische Juristenvereinigung for the opportunity to present my ideas in their formative stages to German audiences; Professors Joachim Hermann and Thomas Mollers for their kind assistance in procuring research resources in Augsburg; Professors Christian Joerges and Karlheinz Muscheler for assistance with respect to research on Hermann Kantorowicz; Professor Bernhard GroBfeld for his thorough reading of an earlier draft of this article, and helpful comments, as well as for his inspiring vision of comparative law; Professors Volker Behr, Martha Chamallas, Jules Lobel, George Taylor and James Q. Whitman for their insightful readings of this article and helpful comments; Ulrich Paul Ronald, for the information about Esperanto I have used in these pages (and for having introduced me to Esperanto as a child). Finally, I would like to express heartfelt thanks to Mr. Peter Kent, of Fort Meyers, Florida, a descendant of the legal theorist, Hermann Ulrich Kantorowicz. Mr. Kent has shown a generosity beyond description in offering me information about his ancestor, including valuable German legal research of which I had been unaware. I am deeply grateful to him for sharing reminiscences and documents relating to Professor Kantorowicz, Professor Radbruch, and the turbulent world in which those two eminent scholars and close friends lived and wrote and which Mr. Kent also experienced during his childhood in Germany. Portions of this article were presented at the Sixth Biennial International European Community Studies Association conference, in June 1999; and at the law faculties of the Universities ofAugsburg (June, 1999) and Hannover (July, 1999).

[L]a grandeur du ginie ne consisterait-elle pas …à savoir dans quel cas il faut l’uniformité et dans quel cas il faut des différences?
– Montesquieu. (Charles de Secondat, baron de), De I’Esprit des Lois, livre xxix, chapitre xviii (1990) (“[Dloes not the greatness of genius consist in knowing in which case uniformity is needed, and in which case differences?”)

The main thrust of this article is to suggest why the European Union may succeed in its objective of legal uniformity despite encompassing the two highly distinct legal traditions of the common law and the civil law. My theory is that the defining characteristics of the civil-law legal culture, although in stark and profound contrast with those of the common-law legal system, nevertheless appear prominently and pervasively in the non-legal spheres of common-law nations; and vice versa, such that common-law legal characteristics correspond closely to elements often excluded from civil-law legal cultures, but which are included in the non-legal domains of the civil-law European Union Member States.

Conversely, the defining characteristics of civil-law legal culture not only are largely absent from common-law legal systems, but, as Peter Goodrich has demonstrated, they consciously and repeatedly were rejected by England. Nevertheless, they are prominently and pervasively present in the non-legal spheres of common-law European Union Member States. Consequently, lawyers from all of the Member States have an intimate understanding of the fundamentals of both the common-law and civil- law mentalities, although they have learned to apply only one of those mentalities to legal discourse and analysis.

The progression towards legal uniformity is spawning a hybrid, homogenized legal culture from the systems of the civil and the common law that encounter each other in the new Europe. The resulting homogenization in turn fortifies uniformity, as the two distinct legal cultures are altered by their mutual encounters, adapting to the imperatives of coexistence and coalescence, and in turn reinforcing homogenization, as their acquired adaptive characteristics contribute to a further breakdown of distinctive legal attributes by processes of reciprocal influence and blending.

I propose to support this thesis by signaling the striking resemblances between the common-law mentality and Romanticism; and between the civil-law mentality and the Enlightenment. The renditions of Romanticism and the Enlightenment that I apply to the common and civil law in these pages are based principally on Isaiah Berlin’s analysis and discussion of Romanticism and the Enlightenment throughout the course of his life’s work. This article both analyzes Berlin’s discussion of Romanticism and the Enlightenment in terms of the common and civil-law legal methodologies and mentalities, and explores the implications of this analysis within the context of the European Union.

Because all of the European Union’s Member States were influenced by both Romanticism and the Enlightenment, lawyers from both the common-law and civil-law legal systems are adept at both conceptions of the world and of life that underlie the legal systems. Thus, the process of Europeanization is reduced to re-learning to apply the “other,” “un-learned” system’s tenets and methodology to the legal sphere of reasoning, thinking, arguing and conceptualizing. This process of skill re-acquisition for European lawyers and judges is greatly facilitated by their preexisting intimacy of acquaintance with the “other” perspective in the non-legal domains of their lives.

Before I proceed with this analysis, I want to be very clear that I am not suggesting that Romanticism was itself a cause of the common-law legal system, or the Enlightenment a cause of the civil-law legal system. Both legal systems predate Romanticism and the Enlightenment by many centuries. Rather, Romanticism and the Enlightenment are useful to my argument to the extent that they are emblematic of different modes of intellectual discourse, outlook, thought and focus that have long coexisted in western society. For complex reasons, one or the other of those discourses dominates the legal institutions of Europe’s Member States.

The last two sections of this essay discuss the challenges to Europe’s future posed by the fusing of legal cultures and by the coalescence of a wider range of cultural characteristics in Europe, not all of which are attributable solely to the effects or acts of the European Union. The European Union’s increasing unicity and univocality may threaten some of its most cherished goals. The very means by which the European Union increasingly becomes capable of effectuating its goals paradoxically also may undermine the ideals it seeks to promote. My conclusion is that economic and legal uniformity simultaneously may be both necessary to the European Union and destructive of it inasmuch as economic and legal uniformity may be incompatible and irreconcilable with cultural pluralism. Unmasking and lucidly examining this fundamental incompatibility lodged in the innermost structures and objectives of the European Union is called for, even if it may entail the burden of recasting institutional aspirations. Conscious recognition of the paradox embedded within the depths of the European Union should be undertaken as part of a reassessment as to which steps will be likeliest to realize the most desirable progression possible of the European Union into the future.