For a relational approach to modern literary Arabic conditional clauses
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This paper is a translation from my French article & Pour une approche relationnelle de la conditionnelle en arabe littéraire moderne & published in Arabica, 2010, 57, pp. 68-98.Do you want to read the rest of this article?Request full-text
ArticleJan 2000ArticleMar 1997LANGUAGEArticleApr 1964LANGUAGEArticleJan 2007Lang Probl Lang PlannArticleJan 2004ArticleNov 2009Jan 2004Ronald BuckleyPaulBuckley, Ronald Paul, (2004), Modern Literary Arabic. A Reference Grammar, Beyrouth, Librairie du
Liban.Jan 1963——————, (2002), [1963], Ri?āl fī al-?ams, Beyrouth, Mu?assasat al-Ab?ā? al-?Arabiyya, Mua?assasat ?assān
Kanafānī al-?aqāfiyya, 5ème éd.Jan 1978Zakariyā TāmirTāmir, Zakariyā, (1981), [1978], Al-Numūr fī al-Yawm al-???ir, Beyrouth, Man?ūrāt dār al-ādāb, 2ème
éd.Jan 2008Eckehard SchulzSchulz, Eckehard et al., (2008), Standard Arabic. An elementary-intermediate course, Berlin-Munich,
Langescheidt KG.Show moreArticleJanuary 2006Fa- is generally described as a connective particle and, when linked to 'inna, as the equivalent of the French car, the Italian giacché, the German denn or the English for. However, in Classical Arabic, the so-called “fa- of the apodosis”, often connected to 'inna, seems to function in a syntactically as well as in a semantically different way. In Modern Standard Arabic, fa-('inna) appears... [Show full abstract]ArticleJanuary 2009This article aims to introduce, besides the concepts of simple and compound sentences used by all grammarians, a new concept, that of “compound of sentences”.
By “compound of sentences” we mean any set of two sentences, one of them being semantically the topic and the other the comment. Syntactically, the two sentences can be either simply juxtaposed or coordinated or one of them can be... [Show full abstract]ArticleIn 2002, Harley adopted the non-derivational approach in analyzing English double objects construction (DOC) and double complement (DC). This paper aims to apply the same approach to Modern Standard Arabic (MSA) ditransitive structures. The following is an example of such a structure in MSA: (1) a. ?a?ta al-mu?lam-u al-taalib-a kitaab-an Gave-3ms the-teacher-nom the-student-acc book-acc 'The... [Show full abstract]PosterMarch 2018Research Questions:
How does the processing system resolve the double-mismatch?
Does the alternative spoken structure influence processing MSA?
Hypotheses:
Significant ERP differences at the violating adjective between the non-human and human subject conditions, if alternative structure from spoken variety influences processing MSA. No such ERP differences,if spoken variety does not... [Show full abstract]You are reading
Toward a European Civil Code?
in Zen mode
Published in
2003/4 (No
Pages 97 - 126
1During 2002, there was great debate among theorists in France about the possibility of a European code unifying all or part of civil law. After the pleas heard several years earlier, there came resigned, doubtful, reserved, or even hostile reactions, which were conveniently compiled in a single work by the Comparative Law Society (Société de législation comparée). The main cause of this sudden doctrinal effervescence was a European Commission initiative. In its tireless pursuit of a single, borderless market, the commission considered complementing the traditional sectoral policy for the harmonization of law with a European code of contract law. Wishing to make an informed decision, it decided to publish a communication and consult the legal community (particularly academics). The tight timescales imposed (a communication was published in the Official Journal of the European Communities on September 13, 2001, and the deadline for responses was October 15, 2001) deprived most French academics, who do not wait in the wings in Brussels, of the opportunity to participate in this debate. The European Commission’s communication at least informed them that the question of a European civil code was moving from the domain of academic speculation to that of positive manifestations. The European Parliament had desired this development for several years. On several occasions from 1989 onwards, it had adopted resolutions recommending the creation of a common European code of private law. In 2001, lamenting the timid approach of the European Commission, which limited its ambitions to contract law alone, the European Parliament reiterated its support for a common European code of private law, and set out the first stages of the calendar designed to lead up to the adoption of such a code. Specifically, private law texts specifying common solutions and concepts for member states would be written by 2004, and taught in universities from 2005; European legislation on common juridical principles would be adopted and applied to cross-border contracts from 2006; and a set of regulations on contract law in the European Union would be adopted from 2010, forming the first element of a future common code of private law. The publication of the European Commission’s recent action plan on contract law shows that the commission is holding back on these objectives: although it establishes shared terminology, it otherwise only provides for the possible creation of an optional tool limited to cross-border contract law. The reservations of French legal commentators, mentioned by the president of the commission’s intersessional working group, M. Dirk Staudenmayer, as well as the absence of any power on the part of the community authorities to unify civil law, have undoubtedly played a part in this scaling-back of the ambitions initially announced. It should be remembered that the community legislature only has conferred powers: any intervention by the community authorities requires a precise legal basis. However, in this case, there is clearly no such basis.
2Nevertheless, several study groups are currently working (on a strictly private basis) on the unification of all or part of civil law at the European level. This raises the question of the economic, cultural, or political advisability of their objective. Strangely, this question is generally avoided by advocates of a European code, most of whom seem to be guided by their belief in a sort of historic law, in which modernity inevitably implies uniformity. A special edition of the review Pouvoirs, dedicated to the French civil code in its bicentennial year, provides a chance to fill this gap and ask whether uniformity is truly an end in itself – an absolute end to which everything (including France’s civil code) should submit.
3The answer is evidently not straightforward. As Montesquieu, contradicting most of his contemporaries, famously wrote: “Uniformity is a kind of perfection which sometimes strikes great minds, but infallibly makes an impression on small ones.” He added that: “The greatness of genius consists in knowing which cases require uniformity, and which require differences.” In other words, it is necessary to ask whether the unification of civil legislation in Europe is a good or a bad thing, in economic, cultural, and political terms. In general, the economy is used as an argument for the unification of civil legislation, and culture as an argument against it. Meanwhile, politics can be used to support both sides of the argument, according to different views of Europe.
The Economy
4Without the jurisdiction to harmonize private law as such (see note 12 above), the European Union can only take up this issue under the guise of working to create a single, borderless market. In other words, the common European private law code could come under the powers of the European Union, via article 95 of the European Community treaty, on the condition that such a code is judged necessary for the completion of the internal market. This allows us to understand that the reason why advocates of such a code assert that differences in laws are an obstacle to the development of trade between member states is because the economic considerations would in this context justify at least a partial unification of civil legislation at European level (hereafter argument A). However, the reverse is also arguable: is a European unification of law, under the cover of exclusively economic interests, enough to create a true civil order (hereafter argument B)?
5A. “Single market,” “A single market calls for a single contractual instrument.” These and other similar expressions argue that partial or total unification of civil legislation is indispensable to perfecting the internal market. According to these arguments, trans-European trade has become so intense that it would be beneficial to remove the obstacle of legal diversity, which particularly affects small businesses, medium businesses, and consumers. However, slogans are no substitute for proof, and such statements are not self-evident, especially upon examination of the North American situation. It has been rightly observed that the lack of unified civil law in the United States has done “nothing to prevent the construction of the world’s largest and most dynamic internal market.” The same goes for Canada. In fact, civil legislation in these two countries remains under the jurisdiction of each individual federated state. It may be tempting to object that America is not Europe. America essentially uses common law, following different traditions to those of Europe. Arguably, the idea of codification in particular is foreign to the American tradition. This observation needs to be put in perspective. In the past, common law countries have not hesitated to work towards unifying their laws when they considered it useful to do so, as shown by the example of the United States common commercial code. In truth, their refusal to unify their civil legislation is more the result of a deliberate and reasoned choice than of tradition. The economic analysis of law led American jurists to conclude that diversity of law, far from being a handicap, helps to dynamize and improve legal systems when it is accompanied by competition between them. Such diversity allows stakeholders in contractual matters to choose the law that best suits their needs, thanks to the autonomy law. More generally, if a rule or institution appears more effective in practice, other systems will tend to adopt it. Systems copy what “works” elsewhere.
6The European and American approaches therefore appear to be diametrically opposed. Eurocrats consider it necessary to unify law, in order to end the distortions of competition. They believe that uniformity is always better than diversity, seeing even an imperfect single text (like so many directions and regulations) as better than multiple, high-quality texts. For them, the important thing is that the law be the same everywhere. Conversely, Americans consider that uniformity can cause apathy and immobility. They see diversity of law as important, because the best law always wins and the game is never over. In other words, Eurocrats prefer fixed, inflexible, and cumbersome law, while Americans prefer flexibility and adaptability.
7Thus, in claiming to imitate the United States in order to compete with them, Eurocrats make juridical choices which are the polar opposite of those that they are intended to equal or outdo. These European choices are all the more surprising for the fact that they go against the teachings of history in continental Europe. As stated by General Gallois:
8Europe’s power is born of its rivalries, which caused competition, action, and creativity. Peoples who fought against each other lost many advantages in wars, but also benefited from the harsh competition. Yet the creation of Europe destroyed this competitiveness. The uniformity pursued by the Brussels Commission in all domains is an example of this …. This uniformity signaled the end of creativity.
9Moreover, far from praising the European Commission’s initiatives, professional circles, who are certainly the best judges of the usefulness of unified European civil legislation, show great reservations about such a possibility. Aside from the fact that they are undoubtedly more sensitive than others to the inflexibility that accompanies uniformity, their reservations can also be explained by their awareness of:
10… the severe juridical insecurity inevitably brought about, at least at first, by adopting uniform solutions. … Because these inevitably entail compromises between fundamentally different (if not radically opposed) views concerning the issues addressed, their exact meaning and their real significance always cause much greater uncertainties than those caused by the reform of a given legal system … Any attempt to unify law inevitably leads to a long period of uncertainties. This significantly increases the number of disputes and, consequently, the cost of transactions.
11In addition, the material and human costs of such projects, generally presented as self-evident by the advocates of unified civil legislation, actually appear to be mere “intuition” that has yet to be proven. This is particularly true given that a civil law system created only on the basis of economic imperatives is at great risk of being a real backward step.
12B. Wishing to become involved in civil matters, as shown by the numerous European Parliament resolutions cited above, the community institutions currently face the problem that such matters are outside of their jurisdiction. It is therefore only under the guise of requirements related to the completion of the internal market that these institutions can become involved in such matters. This does not prevent the European Parliament calling for the creation of a common European private law regime, or stop the study group on a European civil code from working on the discipline as a whole, including family law. It seems that there is a contradiction here, which vitiates the whole undertaking. “The creation of a common code is different to complete harmonization.”
13To cite Portalis’ definition, a civil code is “a set of rules aiming to steer and establish relationships of sociability, family, and interest between men within the same society.” Building on this idea, Gérard Cornu (dean of the Poitiers law faculty) notes that “civil law gives the French people an overall organization which contributes to the construction of a type of society. The internal order of this society, this civil organization of the state, is the basis of what has been called the ‘civil constitution of France.’” In other words, the civil code forms “a whole.” Society is based on the three pillars of this code: family, property, and the contract. Behind the civil code is the civis, the ordinary French citizen, “at all points in their private life:” child, then father or mother, owner, contracting party, consumer, professional, and so on. However, in wishing to consider civil legislation in market terms alone, the European institutions take an extremely reductive view. Reducing the European civis to their economic dimensions alone gives an extremely impoverished view. Aware that civil life cannot be reduced to the market, the European Commission (unlike the European Parliament) has limited its ambitions to contract law in the broad sense (including personal property securities, quasi-contracts, and responsibility). However, even when delimited in this manner, such an approach has clear disadvantages. By relying on purely economic considerations, which are peripheral with regard to the essential functions of civil legislation, it drives a wedge into the traditional “whole” of civil legislation and initiates its dismantling, without even considering the problem in its entirety. These are not the only disadvantages of such a process. Even in contract law in its broad sense, which seems better suited to the requirements of the situation, an exclusively economic approach favors certain data over others, so that the resultant texts are hardly deserving of the name “civil legislation” (that is, legislation which takes into account and balances the various interests, as required to ensure harmonious life as a society).
14This is best illustrated by an example. We know that in order to assist the creation of a single market, the community institutions decided to harmonize the product liability legislation of member states. To this effect, a directive was adopted, and made part of the civil code by a law of May 19, 1998, under articles 1386-1 to 1386-18. These measures were the object of European Commission proceedings for failure to comply with obligations, leading to France being condemned on several grounds. This is an interesting episode in that it highlights the difference between legislation dictated by purely economic imperatives and legislation which seeks to create a true civil order. It is worth examining the two reasons for which France was condemned.
15The directive specified a EUR500 excess for property damage, which was not honored in French legislation. It also provided a choice regarding whether developmental risks were permitted as grounds for exemption or not. Refusing this all or nothing policy, the French legislature chose an intermediate course, in article 1386-12: developmental risks were grounds for exemption for the producer, except if, faced with a product defect, they did not take the necessary measures to prevent harmful consequences. In both cases, France was condemned.
16One might ask why the French legislature took liberties with the directive on these two points. It was because it thought that the solutions provided by the directives were against certain fundamental principles of French civil law: in the first case, the principle of full reparation, and in the second case, the principle according to which anyone causing damage to another by their own fault must repair this damage. It should be noted in passing that the latter principle is based on one of the most “sacred” texts of the French civil code, article 1382. According to the constitutional council, exceptions to this article can only be made on the basis of extremely strong motives of public utility. The French legislature had made the necessary adjustments so that community law texts could be integrated into the civil code without breaking the most fundamental principles of French civil law. In other words, the country aligned the texts being incorporated into its civil code with the general spirit of this code. For this, France was severely condemned, for the very simple reason that these texts were not civil law measures to be interpreted in accordance with the values of the French civil order, but community law measures to be interpreted according to the values of the community order under article 100 of the European Economic Community treaty (which became article 94 of the European Community treaty). As emphasized by the European Court of Justice, this text aimed “to ensure undistorted competition between traders, to facilitate the free movement of goods and to avoid differences in levels of consumer protection,” which “by no means implies that the best level of protection will prevail.” The objective was “purely economic,” because it was only to “favor equality between competitors on the internal market.” In other words, and to cite Cornu, not only is “a civil code not a community instrument,” but community instruments cannot give rise to a civil code. Civil matters change once they are invested by community order. The market values with which this order identifies brush aside the values of civil law. Whereas civil law attempts to take into account the civis, the citizen, in all their complexity and diversity, community law reduces the citizen to a mere producer and consumer: I spend, therefore I am. This is an excellent example of the “spirit” of European law as it was described by Bruno Oppetit:
17A desire to organize European populations in purely quantitative terms and according to exclusively material criteria: Its aim, grosso modo, is to achieve the objectives of the social market economy … with a messianism that cannot replace a spiritual message.
18This is a worrying observation, considering the cultural dimension of the problem.
19The cultural issue is a vast one. It will therefore only be possible to make a few observations. Let us take as our departure point the premise that one of the advantages of Europe is the richness of its cultures. To give just one example, the languages mostly used for communication between peoples (English, Spanish, and French) are European languages. These and other languages (German, Italian, Greek, and so on) are linked to an extraordinarily rich artistic, literary, philosophical, and juridical heritage, whose influence extends far beyond European boundaries. This is particularly true in the case of law. Leaving aside religious laws, Europe is mother to all legal systems around the world. Although there is a Chinese or Japanese civilization, there is not truly a Chinese or Japanese legal model. Given this, several policies are possible (A), some of which carry certain dangers (B).
20A. On the strength of its diversity, Europe could attempt to make this exceptional heritage bear fruit, by pursuing a policy of internal mutual enrichment and external promotion. However, it seems today to be moving towards uniformity, causing cultural impoverishment.
21Within Europe, all possible measures should be taken to allow the citizens of different states to reap the benefits of their diversities, by encouraging learning of the great European languages and knowledge of their cultures. The same process should be followed for law, particularly civil law, which is at the heart of each juridical system. In the short term, for contract law, this increased knowledge would allow free competition between legal systems to reach its full potential, with parties or their councils choosing the law that they consider best adapted to their needs. Magistrates would be in a position to apply the laws of other European countries more effectively, when conflict-of-law rules allow them to do so. It would also encourage borrowing, which would lead to voluntary alignments. In the longer term, it would allow a return to the tradition of the jus commune, understood not as a positive, unified juridical order that has never truly existed, but as a way of thinking, a method of reasoning that allows a historical and comparative approach to the combining of the universal and the particular.
22There are many possible ways of encouraging such a process: creating European civil law professorships (which could be associated with a European law academy); creating an institute of European law similar to the American Law I and increasing student exchanges, which could only suffer from the uniform teaching recommended by the European Parliament. Indeed, why go to a foreign country to be taught identical content to that delivered in one’s own country? This option would allow deeper understanding of our systems, their similarities and differences, their strengths and weaknesses, and a better understanding of law.
23In terms of its external projection, Europe benefits from the fact that some of its countries have had a deep linguistic, cultural, and legal influence in numerous regions of the world. Everything possible should be done to allow all European countries to maintain, develop, and strengthen these connections.
24A priori, official European discourse seems to be favorable to such policies. Article 22 of the Charter of Fundamental Rights of the European Union states that: “The Union shall respect cultural, religious, and linguistic diversity.” However, “respecting” is merely acknowledging a phenomenon, not promoting it. Moreover, there is considerable distance between theory and practice: as soon as this cultural diversity enters into conflict with the only imperatives that really matter to the community institutions (economic imperatives), it is sacrificed to them. This favors uniformity and cultural impoverishment, which carry serious potential risks.
25This is very clear where language is concerned. Far from promoting the diffusion and knowledge of the great European languages, the European institutions function in such a way as to reject them in favor of Anglo-American alone. The practices of the European Parliament are a perfect example of this. This shameful truth is also demonstrated by the fact that the European Court of Justice condemned France for the Toubon law (requiring the use of the French language on the labels of products distributed in France) on the basis that it restricts imports. According to the European Court of Justice, the use of the French language can be advantageously replaced by pictograms and (implicitly) by the Anglo-American language. We also know that the European Commission is currently pressurizing the French government to change French legislation on this matter.
26The same goes for law. The community institutions can harmonize law, if this is necessary to complete the market. This has resulted in a plethora of confused regulations that obey market imperatives alone, which might be called a “steamroller of uniformization.” In a true corruption of the directives method, the European institutions are moving towards decreeing extremely precise laws. This tells “of a uniformizing and isonomic frenzy, which has reached a paroxysmal level,” without a true community juridical system necessarily emerging. The European institutions respond in a piecemeal way to power relationships and to the actions of pressure groups. Forging ahead, the advocates of a common European private law code set it the objective of creating the coherence that the community order currently lacks.
27At this stage of the work, it is impossible to know if these objectives can be achieved. At most, we can observe that the working methods of the study groups focusing on the European civil code seem to directly follow the path of cultural impoverishment described above. The only working language used by this group is Anglo-American. Consequently, if the project is successful, the peoples of Europe will only have the right to a translation into their mother tongue, the decisive language being that of the superpower. This is a strange way to proceed for a body that claims to set itself up as a rival to that superpower! Moreover, such a process is in danger of causing sensitive issues of interpretation, as already shown by the difficulties and inconsistencies that arise from the implementation of community texts, regulations, or directives. Impoverishment is not only linguistic. At its heart, the unification that we pursue is achieved through subtraction. According to Christian von Bar, law formulated in this way must be autonomous and detached from national roots: it should be aligned with the lowest common denominator. Reasoning by analogy on the basis of the linguistic situation, it is not about promoting one language to the detriment of others, but about replacing all languages by a sort of legal Volapük or Esperanto. Carried out in a monopolistic way, such a process could also result in “cultural hegemony.” In their joint responses to the European Commission, Ole Lando and Christian von Bar observe that the communication published could provoke rival vocations. They warn against such a prospect, affirming that only unity would ensure a successful operation. In other words, the European “godsend” is in good hands and should not be dispersed.
28Supposing that, leaping ahead, Europe were to choose unification over coordinating a fully assumed diversity and rediscovering a sort of jus commune, an entirely different method would be required: confrontation and dialogue rather than confiscation, and addition and enrichment rather than subtraction and impoverishment. A European model would need to be added to the national models, allowing for choice. It should be remembered that the writers of the French civil code were confronted with this very complicated problem and resolved it with multiple default rules. Luckily, in the face of resistance, the European Commission’s latest action plan concerning European contract law seems to choose the same direction. Given that (according to the latest information) it would only be a matter of regulating cross-border contracts (the only contracts that might be hindered), such a model already exists in the form of the UNIDROIT (International Institute for the Unification of Private Law) principles, to which actors in international trade can refer. The choice of these principles presents the advantage of allowing these actors, if they so wish, to apply the same rules to trans-European and international contracts.
29The internal impoverishment described above risks being accompanied by a loss of external influence. This is undoubtedly a surprising statement, given that eu(ro)phoric discourse claims that a unified European civil law would be more influential outside of Europe than the national laws. However, this has yet to be proven. For the moment, it should be noted that several European countries, with Britain and France at the forefront, have left their mark on and maintain strong connections with certain regions of the world. If the European civil code were adopted, France would risk weakening these links and reducing the role of the French language as language of the law. The United Kingdom would be asked to make even greater changes: it would have to give up its position at the heart of one of the world’s main families of law. It is difficult to see what Europe would gain from such sacrifices. Most probably, the positions that might be gained from a European civil code would not compensate for those lost, particularly those lost by common law countries. At the very most, the adoption of a European civil code would improve the legal influence of certain countries. Germany could potentially benefit in this way. Given its rather limited juridical audience outside of Europe following the two world wars, a European civil code might allow Germany (which has made itself the supervisor of this project) to regain influence on the global legal scene. Ultimately, rather than claiming that European legal unification will increase Europe’s international influence, it seems more accurate to observe that several European countries (particularly Great Britain and France) would be asked to sacrifice some of their advantages in the name of a European structure which would not significantly improve Europe’s position. Yet many readily accept this internal impoverishment and this loss of external influence in order to reach what they consider to be a desirable ideal: legal and cultural uniformity – the famous European juridical culture, seen as necessary for the existence of a European people.
30B. It remains to be seen whether this ideal should be pursued. The debate is vast and goes beyond the scope of a study such as this. Although the advantages of cultural uniformity are clear from the point of view of large multinationals, in that it allows them to gain maximum profit from their investments, the same is not necessarily true for the individuals targeted by their “cultural” products. La Motte-Houdar, an old and long-forgotten French author, wrote at the end of the seventeenth century that: “One day, boredom was born of uniformity.” The erstwhile dean of Nanterre University, Philippe Malaurie, updates this observation, exclaiming: “How boring Europe would be if it were uniform … What I love about my Europe is its diversity.” Alexander Solzhenitsyn, lamenting the uniformity caused by globalization, made the even harsher observation that “nations are the colors of humanity. If they disappeared, the world would be dismally uniform.” In other words, the legally and culturally uniform Europe pursued by some could easily be boring, or even dismal.
31The European Union’s tireless attempt to create a population of producers and consumers with no roots or ties, who use pictograms and the Anglo-American language, provokes reactions from those concerned. It causes identity fallback in the form of communitarianism. In response to this construction of a uniform, gray, mercantile, and extremely individualist society, individuals nurture their closest roots. This phenomenon is seen in France with, for example, the creation of Breton-speaking, Diwan schools in Brittany. The same goes for Corsica and the Basque Country. Such communitarianism is equally present in the suburbs of France’s large towns and cities, but takes a different form. We should be aware of the consequences of such a process: in the name of modernity and its accompanying European unification, open nations that transcended specific identities are replaced by closed identity groups based on more or less imaginary ethnic communities. We are witnessing a return to tribalism, and Corsica is a particularly good example. Those who are not Corsican have no future in Corsica: no insured property, no professional success, and perhaps one day no work in the civil service. The situation is worrying. As emphasized by political scientist Pierre Manent, all the elements are in place for future “zoological wars,” with events in the Basque Country and Corsica providing a taste of what to expect.
32This is what makes it difficult, from a cultural point of view, to judge the project to unify European civil law favorably. Firstly, it moves towards internal impoverishment and reduced external influence of our linguistic, cultural, and legal heritage, rather than ensuring its prosperity. Secondly, the uniformity that it implies is likely to exacerbate communitarianisms and all their associated dangers. However, political considerations also come into play.
33From the political point of view, there is a very widespread belief that unifying European civil law is a natural step in the completion of the European project. In the words of the preamble to the treaty on the European Union, this project proposes “to lay the foundation of an ever closer union among the peoples of Europe.” By this reasoning, the community of values shared by the populations of the European Union should be embodied in identical civil rules. Yet the question remains as to what kind of Europe should be built. (A) The adoption of a European civil code appears to fall within the establishment of a federal Europe of regions, which itself is not necessarily something to be celebrated (B).
34A. Just as the adoption of the French civil code in some ways completed French unification, the adoption of a European civil code is, according to some, a necessary and highly symbolic step in the building of Europe. Despite being frequently used, this analogy is based on an obvious historical misinterpretation. While the adoption of the French civil code crowned a national unity which had been forged over more than ten centuries of history and through painstaking preparatory work to unite customs with each other and with written law, creating a true synthesis, what is proposed at European level is to unify civil law between peoples. Even the most ardent defenders of the European idea admit that these peoples do not currently constitute a nation, and that the preparatory work has barely even begun. In other words, we are being asked to start with what in the past was a final step.
35However, the advocates of the European civil code do not allow such a detail to stop them. Their discourse continues: we must be able to look to the future. The world is changing. Nations are a thing of the past. They no longer have any political utility,
rivalry between them caused two world wars, which led to the decline of Europe. This reasoning culminates with the assertion: E the European construction gave us fifty years of peace, so working for the European civil code equals working for peace.
36This frequent line of argument puts those who have reservations about a European codification of all or part of civil law in a delicate position, because a rapid a contrario can look like warmongering. Yet debate must not be avoided. Although the equation “European Union = Peace” is one of today’s most widespread, repeated, and publicized slogans, it is a little lacking. If peace reigns in Europe today, it is basically for two reasons. The first, a military reason developed by General Gallois (one of the men behind France’s strength) can stand alone: for the moment, atomic technology makes war between two great European nations inconceivable. The second, more pleasant reason is that fortunately, European populations no longer want to go to war with one another. They (especially the German population, for whom the lessons of the Second World War were particularly harsh) have realized that war is a bad thing and that it is far more profitable for relationships between European populations to be based on cooperation. Compared to such a realization, the existence of a European commission, a European court, or a European parliament is of little consequence. Supposing that the peoples in question were to change their minds in the future and find reasons to go to war, these organizations could not stop them. Obviously, this does not mean that the way in which European populations view Europe is irrelevant. On the contrary! However, what is really important in ensuring lasting peace is to build a Europe that does not cause resentments between its peoples by making them feel ignored, slighted, or exploited. The Yugoslavian example shows that, when faced with this type of situation, the safeguards of such a federal structure are of little use.
37This is why there is an urgent need to reflect on how Europe is built. There are two possible paths, each of which implies a different attitude towards the idea of a European civil code.
38The first path is that of a Euroland: a federal Europe of regions based on the German federal model, which implies the dissolution of nation states and their division into a certain number of L?nder. The European civil code naturally has its place in such a scenario. For those who advocate this kind of Europe, adopting such a code offers the double advantage of eliminating the national civil legislations that contribute to the cohesion of the societies proposed for dissolution, in order to bring consistency to the new grouping being constructed.
39The second path is that of a confederation of states: our leaders have lowered their ambitions for such a path, today preferring to call it a federation of nation states. According to certain analysts, this is a nonsensical “oxymoron,” whose only merit is that, by combining contradictory terms, it can satisfy both those who want a political Europe and those who want independent states. Such a debate is outside the scope of this study. However, it is worth emphasizing that if there is one domain in which a federation of nation states, with its own coherence, clearly differs from a federal Europe of regions, it is that of civil legislation. Advocating a federation of nation states means, at the very least, affirming that all European peoples have a vocation to preserve their identity and thus their civil legislation.
40Of these two views of Europe, it is clearly the first, German view that has the wind in its sails. This turnaround occurred in the late 1980s and early 1990s, at the time of German reunification. A brief historical reminder is useful in understanding the origins of this change.
41In a press conference on March 25, 1959, General de Gaulle outlined the course to be taken in the face of the problem of German reunification: It seems to us that the reunification of the two parts into one, entirely free Germany is the normal fate of the German people, provided that they do not challenge the new borders to the west, east, north, and south, and that they work to integrate themselves within the contractual organization of Europe as a whole, for cooperation, freedom, and peace.
42In other words, yes to German unity, as long as it respected the borders, that is, as long as Germany renounced its expansionism and its traditional imperialism, and if it became part of a confederal Europe based on cooperation between states.
43When the question of German reunification arose thirty years later, following the collapse of the Soviet Empire, French leaders at the time did the exact opposite of what General de Gaulle had recommended. Rather than supporting the reunification movement, on the condition that the borders are respected, Mitterrand went to Russia and to the German Democratic Republic, in an attempt to maintain the division of Germany. Clearly, he failed miserably and lost all credibility (in the eyes of both west and east Germans) to demand anything, particularly that German reunification respect the borders established after the Second World War. It was only some time later, on July 17, 1990, following the urgent intervention of the United States president of the time, George Bush senior, that Helmut Kohl agreed to officially recognize the inviolability of the Oder-Neisse line.
44Having thus demonstrated their skill and foresight, the French political leaders of the time – terrified when faced with a Germany of over eighty million inhabitants – sought salvation in a reorientation of European policy: the construction of a federal Europe. They saw this as a way of tying Germany down. The shift in French policy clearly received a favorable welcome from Germany, because it corresponded to the political line that the country had always followed. It was realized through the adoption of the Maastricht, Amsterdam, and Nice treaties.
45However, in reality, it seems that the results of this policy were the opposite of those desired. Far from encouraging the existence of a German nation with clear orders, which would guarantee stability in Europe, the combination of a supranational federal Europe and a federal Germany caused Germany’s leaders to reestablish links with the country’s imperial past. Federal Europe was built like a sort of widened federal republic, or a new holy Roman Germanic empire, in the form of a federal Europe of regions. This resulted in two movements emerging. Firstly, there was a centrifugal movement: the traditional nation states, France at the forefront, were progressively drained of their substance, with the community institutions and the regions rising to power. As openly stated by Ruddolf von Thadden (head of Franco-German cooperation at the federal ministry of foreign affairs): “if we want to construct Europe, we need to deconstruct France a little.” Certain bodies funded by Germany (or more precisely by its ministry of the interior), particularly the Federation of European Ethnic Communities, which had its headquarters in Flensburg on the border between Germany and Denmark, actively encouraged irredentist movements in neighboring countries (particularly France). Secondly, there was a centripetal movement. German reunification was accompanied by the establishment of several legal tools. These included a charter for regional languages, and a framework convention for the protection of minorities. These were instigated by Germany under the auspices of the Council of Europe. They helped to dissolve boundaries within Europe, accentuate the dissociation of nation states and – particularly by creating cross-border provinces – allowed Germany to absorb areas that it thought should be within its zone of influence.
46Many will find this statement excessive. They should refer to the highly documented work of Hans-Rüdiger Minow and Walter von Goldenbach, tellingly subtitled German Foreign Policy and the Ethnic Fragmentation of Europe. An official document in the appendices reproduces the map of the future Europe drawn by the movements which, within the parliament, fought for an ethnic division of Europe and the adoption of resolutions demanding the creation of a European civil code. It allows us to picture more clearly the Europe to which these movements aspired. On this map, the area of France is reduced by half, with the loss of Brittany, the Basque Country, and Corsica, as well as Occitania. Germany, on the other hand, gains Austria, northern Switzerland, Luxembourg, and of course, the Alsace region and the part of Lorraine that had already become annexes of Germany following the 1870 Franco-Prussian war. Here, we see communitarianism, and more precisely a Europe built upon the notion of ethnicity, on the political rather than the cultural level. In his recently reedited Conséquences politiques de la paix (The Political Consequences of Peace), historian Jacques Bainville analyzes the situation created by the Treaty of Versailles and gives a step-by-step description of the stages that would lead to the Second World War. His predictions, which unfortunately all came true, included the following: “The atrocious disruptions of our humanity date back to the day when the idea of race was thrown into European circulation. There is no reason why their future effects should be any better.” Jacques Bainville wrote these words in 1920 and died in 1936. He thus never saw how accurate his prediction was. Unfortunately, his observation remains highly topical. It should be added that this map was established with the widening of Europe towards the east, which created even greater possibilities for expansion and redistribution.
47B. Resituated in this context, the project for a European civil code is not politically neutral. Besides the fact that, in general, it moves the European structure towards the German model, with its “single market, currency and law,” it would also cause the disappearance of national civil laws, particularly the French civil code – the “French civil constitution” – which helps to ensure the cohesion of French society and to remind the French that they are a people, while giving coherence to the new, unborn empire. Therefore, the project could well take on its true dimension. As emphasized by Rémy Cabrillac in his recent and admirable book on Codifications, the legal unification and rationalization project, which constitutes a codification, may hide an “attempt at hegemony.” Admittedly, this is not a hard hegemony. At the very most, in the words of Joschka Fischer, who was the number two in the German government, certain political leaders claim a “soft hegemony” (sanfte hegemonie) for their countries, which favors the methods of economy, diplomacy, and law. Combined with the desire for power that is found in the European institutions today, and which leads them to extend their hold ever further, this method seeks to impose a European civil code on all the peoples who make up the European Union, at a time when the latter is devoid of all competence in the matter. As in other domains, it is the fait accompli policy that is practiced. The historical references used by the advocates of a European civil code remain unchanged. Thus, the reference to Charlemagne (Charles the Great) is naturally present in the discourse of von Bar, promoting the merits of the European civil code to the French.
48This statement should not be taken wrongly. It aims not to reactivate the conflicts of another age. It is simply a reminder to political leaders who may forget that there can be no friendship between peoples without respect of these peoples, and that fait accompli politics are not, strictly speaking, a mark of respect towards those concerned. It is also a matter of clearly reaffirming that the entity being constructed is formed of nation states, and that it must therefore be based on respect of the different peoples, their personalities, histories, cultures, languages, borders, and laws, particularly civil law. Thanks to the existence of national civil legal regimes, it remains possible for each population to choose its basic terms of living, and the model that best fits its culture and needs. It would be paradoxical for a federated state such as Quebec or Louisiana to have been allowed to keep a civil code, and for a nation state such as France, whose laws are rooted in millennia of history, to be deprived of this possibility. Moreover, it is important to emphasize that, in democratic terms, it would be an unbelievably regressive step for democracy to impose a European civil code drafted by self-selected experts, and which would be imposed either by a law over which national parliaments have no power, or by a treaty for them to take or leave without the possibility of amending it, despite the fact that it concerns not international questions requiring collaborative treatment by states, but the internal organization of each society.
49It remains to be seen whether the French authorities still wish to maintain such a discourse. Certain factors make this highly doubtful. By inscribing decentralization in the constitution, the current government has taken the first steps towards allowing France’s internal organization to be brought into conformity with the European federal architecture.
50On a historical scale, the relationship between France and Europe is part of what has been called a dialectic of the kingdom and the empire. As emphasized by Pierre Béhar, “since the collapse of the Roman Empire, European history has been characterized by a basic contradiction. On the one hand, continental Europe is
the national phenomenon is expressed in such an accomplished way that it has even served as a model for other nations around the world. On the other hand, Europe has regularly seen tireless attempts to rebuild empires, which have collapsed just as often. Emperor of his kingdom, the king of France stayed out of these projects and preserved French sovereignty. Yet although, in the course of history, France always defended its own sovereignty, this was not (at least when France was truly itself) part of a policy of domination and power. It aimed instead to exercise a sort of authority by example and influential excellence. In this regard, heraldry is interesting. Whereas empires have always used the world’s more ferocious beasts (the eagle, the lion, or the bear) as symbols of their strength, the kings of France chose the fleur de lys: a symbol of purity and justice. If the euro has just one merit, it is that these traditions are continued on the reverse side of its coins. The German coin features the eagle, a symbol of power and domination, which for a French person evokes so many good memories. On the French coin, the fleur de lys has been replaced by the sower, which reminds us that France is only France when it spreads the influence of its ideas by example. What made General de Gaulle’s actions so renowned and influential on an international level, despite France’s limited material means, was probably the fact that he gave the country time to regain its identity, and that during his presidency, France sent a message of independence to other nations: be yourselves, do not allow yourselves to be subjugated by empires. “No” to uniformity, long live diversity.
51Although it could be argued that this is not the meaning of history, when the advocates of a project are reduced to using such an argument, one might question the validity of their theory. Widely used during the Second World War by the advocates of “Mr. Hitler’s new Europe,” the meaning of history argument resurged in the 1950s with the extolling of Marxism by most of the French intelligentsia: the epilogue was a certainty, and only the calendar was unknown. In both cases, we know the ending. It therefore seems that, if history has a meaning, it is rarely that claimed by those using it as an argument. History is what men make of it with their reason and their emotions.
52However, reason suggests that it is utopian to claim that nations whose roots, in some cases, go back millennia (Europe is not America, which was built on a void, or, to be more accurate, on genocide) cannot be brought together to build a single state – a state whose boundaries and population are unknown. (Is its vocation to include Turkey, all of the Balkans, Russia, the Maghreb, Israel, and so forth?) Yet without these fundamental constituent elements, the very existence of the country is inconceivable. In fact, there is a name for this kind of state: an empire. Although history probably has no meaning, it does have certain constants. Among other things, it teaches us that in Europe, empires have always collapsed in blood, tears, and the suffering of populations. In other words, the unification of civil legislation in Europe – an expression of this imperial vision – is politically dangerous, culturally harmful, and economically useless. My own emotions lead me to hope that France will not fall out of history, and that it will remain or reclaim its status as “mother of arts and laws,” in the interests of Europe and the world. However, for this to happen, the French need to continue believing in France, and French legal professionals need to believe in French law. This is where the problem lies.
Claude Witz, “Plaidoyer pour un Code européen des obligations,” Recueil Dalloz (2000): 79. See Denis Tallon, “Vers un droit européen du contrat ?,” in Mélanges Colomer (1993), 485, and “Les Principes pour le droit européen du contrat,” (Defrénois, 2000), 683.
B. Fauvarque-Cosson, “Faut-il un Code civil européen ?,” RTDciv (2002): 463.
J. Huet, “Nous faut-il un “euro” droit civil ?,” Recueil Dalloz (2002): 2611; Philippe Malaurie, “Le Code civil européen des obligations et des contrats, une question toujours ouverte,” JCP 1 (2002): 110; Philippe Malinvaud, “Réponse – hors délai – à la Commission européenne: à propos d’un Code européen des contrats,” Recueil Dalloz (2002): 2542.
V. Heuzé, “? Propos d’une initiative européenne en matière de droit des contrats,” JCP (2002): 152; see C. Jamin, “Un Droit européen des contrats,” in Le Droit privé européen (1998), 40.
Gérard Cornu, “Un Code civil n’est pas un instrument communautaire,” Recueil Dalloz (2002): 351; Yves Lequette, “Quelques remarques à propos du projet de Code civil européen de M. von Bar,” Recueil Dalloz (2002): 2202.
Guy Canivet, introduction to Pensée juridique fran?aise et harmonisation européenne du droit, ed. B. Fauvarque-Cosson and D. Mazeaud (2003).
Communication from the European Commission to the Council of Europe and the European Parliament on European contract law, Official Journal of the European Communities (OJEC) C255 (2001): 1.
Some nevertheless judge their attitude very harshly, see for example H.-J. Sonnenberger, “L’Harmonisation ou l’uniformisation européennes du droit des contrats sont-elles nécessaires ?,” Rev. crit. DIP (2002): 405 onwards, particularly 408 and 409. Sonnenberger states that this silence is “a case of the lamentable policy of burying one’s head in the sand and waiting for the storm to pass … Those who do not participate in the debate will later have no right to denounce the bureaucratic nature of Brussels’ decision.”
Resolution A2-157/89, OJEC C158 (1989): 400; Resolution A3-0329/94, OJEC C205 (1994): 518; and Resolution B5-,, OJEC C377 (2000): 323.
OJCE CO63 (2003); on this action plan, see B. Fauvarque-Cosson, “Droit européen des contrats: première réaction au plan d’action de la Commission,” Recueil Dalloz (2003): 1171.
D. Staudenmayer, “Le Plan d’action de la Commission européenne concernant le droit européen des contrats,” JCP 15 (2003): I, 127.
On this issue, see Bangemann, “Privatrechtsangleichung in der europ?ischen Union,” ZeuP (1994): 377-78: Bangemann notes that the European treaties do not contain a single provision authorizing the European Union to unify private law. Yet such an authorization would be indispensable for the European Union to implement an initiative on this matter, given the principle of attribution of specific competences. See I. Schwartz, “Perspektiven der Angleichung des Privatrechts in der Europ?ischen Gemeinschaft,” ZeuP (1994): 559, 570. Schwartz emphasizes that the European treaties do not aim to harmonize private law as such, and do not give the community the power to harmonize it, except to integrate markets. See also Fauvarque-Cosson, “Droit européen des contrats,” 463.
Such is the aim of the study group on a European civil code, led by von Bar. In fact, having indicated in 2001 that “the study group is not yet thinking of including family law or inheritance law in the first phase” of its works (C. von Bar, “Le Groupe d’études sur un code civil européen,” RIDcomp [2001]: 131) von Bar announced in 2002 that a “commission on European family law has recently been created” (in: Les Annonces de la Seine 33 [2002]: 2).
In the case of the Lando Commission and the Pavia Group, which deal exclusively with contract law.
von Bar’s attitude is exemplary in this regard: “For a long time …, there was a flood of articles discussing this subject in an abstract way (which, for France at least, is inaccurate): they treated the question of whether it was necessary, possible, or desirable to create a European civil code … Such a general discussion certainly has its place, but it cannot lead to much.” (C. von Bar, “Le Groupe d’études sur un code civil européen,” RIDcomp (2001): 127.
Sonnenberger, “L’Harmonisation ou l’uniformisation européennes du droit des contrats sont-elles nécessaires ?,” 434: “It is unimaginable to Europeanize such an important part of civil law without weighing up the arguments for and against, and without proof that it is necessary. To date, this has not yet been done, and consequently the community also lacks clear competences.
Montesquieu, De l’Esprit des lois, vol. 29, chap. 18.
Heuzé, “? Propos d’une initiative européenne en matière de droit des contrats.”
See also the United Kingdom government’s response to the European Commission’s communication: “The UK itself is a longstanding example of a perfectly-functioning single market, notwithstanding the significantly different legal regimes in Scotland and in England and Wales.”
S. Herman, “L’Expérience des ?tats-Unis d’Amérique …: La Gestion des transactions pluri-étatiques aux ?tats-Unis,” in Le Droit privé européen (1998), 150 onwards.
This is even truer given that today, the conflict-of-law rules for contract law are unified by the Rome convention of June 19, 1980. The integration of this convention into the community system, in the form of a community regulation announced by the green paper of January 14, 2003, should be a sign that the community order accepts diversity of national legal regimes and asserts the need to coordinate them: Poillot-Peruzzetto, Contrats, Conc., Consom (2003): 3.
Certain authors, aware of the possible disabling effect of unifying civil law, recommend that if such a unification were to take place, there should be concessions to ensure a degree of flexibility. Thus, according to R. Sacco, it would be necessary to “provide procedures to allow a member state to adopt a diversified, innovative legal system, if this state can show reasons in favor of such an action and solution. This would allow law to evolve, and make the European system permeable.” R. Sacco, “Non, oui, peut-être,” in Mélanges C. Mouly, vol. 1 (1998), 163.
P.-M. Gallois, Le Consentement fatal. L’Europe face aux ?tats-Unis (Paris: Textuel, 2001), 25, 67. See also P. Manent, Cours familier de philosophie politique (Paris: Fayard, 2001), 111, 112.
See the reservations of the French banking federation, dated May 13, 2003, concerning the European Commission’s action plan for a European contract law.
Heuzé, “? Propos d’une initiative européenne en matière de droit des contrats,” in which the author takes the example of the countless difficulties that arose from the interpretation of the Vienna convention on the international sale of goods.
The advocates of unification avoid attempting to provide such proof, preferring to claim that their arguments are obvious. In this respect, von Bar’s attitude is highly representative: “The hindrance of private law on the internal market is an everyday experience – whether it can be concretely proven or not.” See: “Code civil européen,” Les Annonces de la Seine 33 (2002): 3, col. 3.
Sonnenberger, “L’harmonisation ou l’uniformisation européennes du droit des contrats sont-elles nécessaires ?, op 409.
Portalis, Discours de présentation du Code civil prononcé le 3 frimaire an X.
G. Cornu, Introduction, les personnes, les biens (2001), 10th ed., no. 257; Jean Carbonnier, “Le Code civil,” in Les Lieux de mémoire, ed. Pierre Nora (Paris: Gallimard, 1997), tome 1, 1345.
G. Cornu, “Un Code civil n’est pas un instrument communautaire,” Recueil Dalloz (2002): 351.
European Court of Justice, April 25, 2002, Recueil Dalloz (2002): 1670. On this decision, see J. Calais-Auloy, Recueil Dalloz (2002): 2548; C. Larroumet, Recueil Dalloz (2002): 2462; and G. Viney, JCP I (2002): 177.
“Reparation” in Muslim law (from the eleventh century) was also one of the four pillars of the fiqh: S. Jahel, “Les Principes généraux du droit dans les systèmes arabo-musulmans au regard de la technique juridique contemporaine,” RIDcomp (2003): 105.
Constitutional Council, October 22, 1982, in Recueil Dalloz (1983): 189, note by F. Luchaire.
European Court of Justice, April 25, 2002, Recueil Dalloz (2002).
Viney, JCP.
Viney, JCP.
B. Oppetit, “Droit commun et droit européen,” in Mélanges Loussouarn (1994), 331 onwards, particularly 313.
On the cultural dimension of law, see P. Legrand, “La Le?on d’Apollinaire,” in L’Harmonisation du droit des contrats en Europe, 37.
Jean-Louis Halpérin, “L’Approche historique et la problématique du jus commune,” in Variations autour d’un droit commun (2001), 17.
European Court of Justice, September 12, 2000, RTDciv (2001): 235, observation by Molfessis.
C. Prieto, “Une Culture contractuelle commune en Europe,” in Droits (forthcoming).
B. Oppetit, “Le Mythe du législateur suprême,” Recueil Dalloz (1990): 73.
As explicitly recognized by the European Commission in its communication: OJEC 255 (2001): 6.
On this, see Sonnenberger, “L’Harmonisation ou l’uniformisation européennes du droit des contrats sont-elles nécessaires ?,” 413.
Von Bar, “Le Groupe d’études sur un code civil européen,” 136.
Prieto, “Une Culture contractuelle commune en Europe,”
O. Lando and C. von Bar, Joint Response of the Commission on European Contract Law and the Study Group on a European Civil Code, no. 78.
Sonnenberger, nnenberger, o it is difficult to format the reference.w and the Study Group on a European Civil Coden
On this, see R. Le Balle, “Unité nationale et codification,” Rev. Crit. Lég. Jurisp. (1938): 366 onwards, particularly 379.
On these principles, see in particular Kessedjian, “Un Exercice de rénovation des sources du droit des contrats du commerce international: les Principes proposés par l’Unidroit,” Rev. Crit. DIP (1995): 641; B. Fauvarque-Cosson, “Les Contrats du commerce international, une nouvelle approche: les Principes d’Unidroit,” RIDcomp. (1998): 463; and C. Larroumet, “La Valeur des Principes d’Unidroit applicables aux contrats du commerce international,” JCP, I (1997): 4011.
C. Witz, “Plaidoyer pour un Code civil européen,” Recueil Dalloz (2000): 80.
Sonnenberger, “L’Harmonisation ou l’uniformisation européennes du droit des contrats sont-elles nécessaires ?,” 419: “Less uniformity in law rules can be a condition for more integration, whereas too much uniformity can cause exactly the kind of spirit of disintegration among European peoples that we wanted to overcome.”
It is significant that Corsican separatists place the creation of an unforgeable Corsican identity card at the forefront of their demands.
Manent, Cours familier de philosophie politique, 132.
André-Jean Arnaud, Les Origines doctrinales du Code civil fran?ais (LGDJ, 1969).
It should be remembered at this point that the two world wars were caused not by rivalry between nations, but by the expansionism of empires attempting to rule populations that did not naturally fall under their power: the expansionism of the Austro-Hungarian empire and the Russian empire for the First World War, and that of the Third Reich (the German empire) for the Second World War.
See in particular Gallois, Le Consentement fatal, 32 onwards.
On this, see E. Husson’s enlightening preface to P. Hillard, Minorités et régionalismes dans l’Europe fédérale des régions, enquête sur le plan allemand qui va bouleverser l’Europe, 3rd ed. (Paris: Guibert, 2001), 305 onwards.
P.-M. Gallois, Devoir de vérité (Paris: Cerf, 2002), 80.
E. Husson, L’Europe contre l’amitié franco-allemande (Paris: Guibert, 1998), 24.
Le Figaro, June 1, 2001.
This body first operated under the cover of Danish figures, before Germany felt confident enough to take over in the mid-1960s. It published a review entitled Europa ethnica. This title had an agenda of its own and openly implied continuity with the Nazi eth