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The European Codification Process :  Cut and Paste (Private Law in - Mattei Ugo

The European Codification Process

Cut and Paste (Private Law in

Hardcover Published: October 2003
ISBN: 9789041122308
Number Of Pages: 199

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This volume contains thoughts on the issue of Codification of European Private Law and on the present state of European Private Law by one of the protagonists of the debate that is unfolding in Europe. Taking a sometimes sharply critical view, Professor Mattei attempts to unveil what he considers biases, strategies, and ideologies that affect the European legal process. The work attempts to open a basic and genuine political debate between legal scholars, which he considers an unavoidable prerequisite of any major reform process in private law. Challenging the claim of technocratic neutrality shared by much of the most influential European legal academy, the author uses the tools of Comparative Law and Economics to set priorities on the table and to show some of the real stakes of the present process.The work explores fundamental areas of European private law, from the sources' to contracts' to trust law.

Context and Acknowledgementsp. ix
The Comparative Law and Economics Approach to the European Civil Code. An Introductionp. 1
The Desirability of a Civil Code from the Economic Perspective: First Thoughtsp. 1
The Common Core Hypothesis: First Thoughtsp. 4
A Recent Line of Inquiry: Comparative Law and Economicsp. 9
Positive and Normative Discoursesp. 16
Comparative Law and Economics as Critiquep. 22
The Professional Project: Practitionersp. 29
p. 33
Comparative Oppositions and the Role of the Legal Professionp. 33
The Convergence Hypothesis and Its Limitsp. 35
p. 39
Unitary Profession in the Common Law: The United Statesp. 39
Divided Profession in the Common Law: Englandp. 46
Unitary Profession in the Civil Law: Germanyp. 51
Divided Profession in the Civil Law: Francep. 53
p. 56
Convergence in Formp. 56
Market Specializationp. 57
The Professional Project. Scholarsp. 67
The Conservative Strategyp. 68
Fears of Hegemonyp. 71
Transaction Costs, Path Dependency and more on the Common Corep. 74
Postmodern Legal Scholarship and the Codification Processp. 81
Setting the Scene: Modernism, Post-modernism, and Critical Thinkingp. 83
Setting the Scene: Dramatis Personaep. 86
European Conservative Ideology Transformed by the Left in the U.S. and Returned to Europe?p. 89
Re-inventing the Common Law vs. Civil Law Traditionsp. 92
Modernism, Post-modernism and Critical Thinkingp. 97
A Postmodern Civil Code?p. 99
Hard Code Now! A Critique and a Plea for Responsability in the European Debate over Codificationp. 107
Postmodern Condition and the Debate over the Codep. 107
The Whether and the How in European Private Lawp. 109
Surrender to the Actors of Market Globalisation?p. 113
Soft Rhetoric for Hard Practicesp. 115
In Defence of Hard Law as a European Necessityp. 118
The Issue of Contents. What's in the Code?p. 121
Contracts, Schizophrenia and Beyondp. 129
Economic Functions of Contract Lawp. 129
The Distinction between Civil and Commercial Lawp. 131
Legal Form, Transaction Costs and the Merchant's Paradoxp. 134
The Emergence of Schizophrenic Contract Law in Europep. 137
Thriving and Divided Scholarsp. 142
Prolific Eurocratsp. 146
Distracted Judgesp. 149
The Vertical vs. Horizontal Mismatchp. 152
A Critique of Substantive Contractual Schizophreniap. 153
The Case for European Enforcement Rules of Contractp. 155
Conclusions. The Case for a Minimum Mandatory Contract Codep. 157
Should Europe Codify Trust?p. 161
Introductionp. 161
The Basic Economic Structurep. 164
The Rrelevant Questionsp. 166
Preliminary Issues of Trust Law Codification. Legal Pluralism, Legal Formants and Jurisdictionp. 169
Drafting the Map: The Common Core Questionnairep. 173
Would a Perfect European Code of Trust be Enough?p. 175
Conclusionsp. 177
Conclusions: What is Missing?p. 179
Table of Contents provided by Ingram. All Rights Reserved.

ISBN: 9789041122308
ISBN-10: 9041122303
Series: Private Law in European Context Series, Volume 4
Audience: Professional
Format: Hardcover
Language: English
Number Of Pages: 199
Published: October 2003
Publisher: Kluwer Law International
Country of Publication: NL
Dimensions (cm): 23.39 x 15.6  x 1.27
Weight (kg): 0.46