Hard Code Now!
This paper advocates the immediate beginning of a genuine, pluralistic political process leading to a binding codification of European Private Law. It is a critique of what I characterize as the post-modernist "soft" discourse of current European private law. This soft ideology stays behind proposals of "restatement" of European law; notions of "model" European codes; assertions of the sufficiency of European legal science as an alternative to codification; theories of competition between national legal systems as an efficient pattern of private law integration; notions of facilitating, optional "default law" as an efficient alternative to mandatory binding legal rules. My claim is that such soft rhetoric is yet another pattern of reception of American legal categories, poorly fitting the present fabric of the European legal scenario, and yielding to a variety of political consequences that should be spelled out rather than kept tacit.
The new European Code should be hard, minimal, not limited to contracts, and process-oriented. It should aim to reflect the social fabric of European capitalism. The European codification process should look beyond the frontiers of fortress Europe and locate itself in the global dynamic of lawmaking.
Ugo Mattei. "Hard Code Now!" 2002
Available at: http://works.bepress.com/ugo_mattei/5
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