This article was previously published in Maastricht Journal of European and Comparative Law 5(1998), p. 328-340 A European Private Law as a Mixed Legal System Towards a lus Commune through the free Movement of legal rules l. How to Arrive at a European Private law The most striking development in private law over the past decade is undoubtedly its Europeanization. The desire to achieve a European private law has, apart from the much longer existing Directives legislation, resulted in an avalanche of scholarly national and international organs and texts which are intended to serve as a first step towards a European ius commune of private law. If the tone set in these writings were all to go on, we would be inclined to think that the realization of a European private law may be just a matter of rules or principles drafted by designated committees or institutes. No longer the question as to whether a European private law is desirable,or even as to how such a law can be achieved, but rather the question as to when it will be realized, seems to prevail in many publications In this article, the desirability of a European private law is assumed. Its practical significance is evident: as a justification, it has been pointed out that if a proper internal European market is to be created, a uniform private law is a prerequisite. This purely economic motive is usually exemplified by the situations in italy and germany in 1866 and 1900, respectively, in these countries, unification of the law came about after political and economic integration. It is then said that integration and unification must go hand in hand. However, it is not just practical interest which makes unification necessary; it is also challenging academically to achieve a uniform private law which is apable of removing the alleged contradistinctions between Civil Law and Common aw What is disputed in this article, however, is the way in which a ius commune A slightly different version of this article has been published in Dutch in 73 Nederlands Juristenblad(1998), p. 61 ff. I am grateful to Wies Rayar for helping me with the translatio For an overview see E. Hondius, General Introduction, in Towards a European Civil Code (2nd. ed, Nijmegen, 1998), 13, supplemented by, e. g, De Groot/Schneider, in Bleckmann (ed ) Europarecht, 6ed, (1997), 480 ff. The following are published in the Netherlands: Maastricht Journal of European and Comparative Law(1994), European Review of Private Law(1993)and Tilburg Foreign Law See, e.g., Taschner,s and Hayder's articles in Muller-Graff(ed. ) Gemeinsames Privatrecht in der Europaischen Gemeinschaft, (Baden-Baden, 1993), 155 ff. Ole Lando, Principles of European Contract Law, 56 RabelsZ (1992), 262. Error! bookmark not defined
Error! Bookmark not defined. This article was previously published in: Maastricht Journal of European and Comparative Law 5 (1998), p. 328-340. A European Private Law as a Mixed Legal System Towards a Ius Commune through the Free Movement of Legal Rules Jan Smits* 1. How to Arrive at a European Private Law? The most striking development in private law over the past decade is undoubtedly its Europeanization. The desire to achieve a European private law has, apart from the much longer existing Directives legislation, resulted in an avalanche of scholarly publications,1 a dozen or so new journals,2 strong political stands by the various national and international organs and texts which are intended to serve as a first step towards a European ius commune of private law. If the tone set in these writings were all to go on, we would be inclined to think that the realization of a European private law may be just a matter of rules or principles drafted by designated committees or institutes. No longer the question as to whether a European private law is desirable, or even as to how such a law can be achieved, but rather the question as to when it will be realized, seems to prevail in many publications. In this article, the desirability of a European private law is assumed. Its practical significance is evident: as a justification, it has been pointed out that if a proper internal European market is to be created, a uniform private law is a prerequisite.3 This purely economic motive is usually exemplified by the situations in Italy and Germany in 1866 and 1900, respectively; in these countries, unification of the law came about after political and economic integration.4 It is then said that integration and unification must go hand in hand. However, it is not just practical interest which makes unification necessary; it is also challenging academically to achieve a uniform private law which is capable of removing the alleged contradistinctions between Civil Law and Common Law. What is disputed in this article, however, is the way in which a ius commune * A slightly different version of this article has been published in Dutch in 73 Nederlands Juristenblad (1998), p. 61 ff. I am grateful to Wies Rayar for helping me with the translation. 1 For an overview see E. Hondius, `General Introduction', in Towards a European Civil Code, (2nd. ed., Nijmegen, 1998), 13, supplemented by, e.g., De Groot/Schneider, in Bleckmann (ed.), Europarecht, 6 ed., (1997), 480 ff. 2 The following are published in the Netherlands: Maastricht Journal of European and Comparative Law (1994), European Review of Private Law (1993) and Tilburg Foreign Law Review (1991). 3 See, e.g., Taschner's and Hayder's articles in Müller-Graff (ed.), Gemeinsames Privatrecht in der Europäischen Gemeinschaft, (Baden-Baden, 1993), 155 ff. 4 Ole Lando, `Principles of European Contract Law', 56 RabelsZ (1992), 262
must be achieved. It is in particular questioned if the way now commonly envisioned to arrive at a ius commune is the right one. to this end, first the current methods of integration and their inherent drawbacks must be examined. The major part of the article will be dedicated to pointing out an alternative road towards a European private aw,a road much more in tune with the historical development of the ius commune which existed before the codifications, a ius commune so eagerly invoked by the resent advocates of a European private law 2. Current Methods of Creating a European Private Law: an Attempt at Categorization Roughly speaking, the attempts at creating a European private law may be divided into three categories. All three are characterized by the authoritative imposition or formulation of rules or principles. The most familiar method is that of harmonization through Directives of the European Union. In the field of private law, this road has been followed, in particular, to effect uniform consumer protection: major examples are the Directives on doorstep selling(1985), product liability(1986), consumer credit (1986), package travel(1990), unfair terms in consumer contracts(1993)and time sharing(1993). It has been said that consumer protection is the motor of private law development within the European Union. Its drive, however, is limited: directives esult in European private law for a very limited area, which is also rather fragmentary The result is a brussels brick here and there within the national private law building The character of harmonization-the objectives are centrally formulated, but the way in which they are attained are at the discretion of the member States-also entails that in first instance the Member States(read: their governments) are responsible for bringing their law in line with the directive. as a result of this embedding into national law however, it is difficult to establish, after a directive has been issued, whether and to what extent implementation and judicial interpretation have left uniformity intact. Incidentally, this first objection is not really felt within the various national private law systems. This is remarkable: one would expect isolated pieces of European aw not only to be odd ducks among the national, organically grown private law order, but even to amount to viruses infecting the classical private law system. In practice, however, there is not such a big problem. Perhaps this can be explained as follows: on more than one occasion, it has been noted that consumer law has been conceived of as a collection of technical rules of a rather administrative law nature. rather than as true Winfried Tilmann,Towards a European Civil Code, 5 Zeitschrift fir Europaisches Privatrecht(1997), 595 ff. For an overview of directives see Peter-Christian Muller-Graff Private Law Unification by Means other than Codification, in Towards a European Civil Code, op. cit. 30 ff. Oliver Remien, ' Uber den Stil des Europaischen Privatrechts, 60 RabelsZ(1996),8 See, for instance, Muller-Graff, op. cit, at 22 ff. For other objections to harmonisation through directives see Kapteyn/Verloren van Themaat, Introduction to the Law of the EC, 2nd ed (Deventer, 1989), 478 ff. Error! bookmark not defined
Error! Bookmark not defined. must be achieved. It is in particular questioned if the way now commonly envisioned to arrive at a ius commune is the right one. To this end, first the current methods of integration and their inherent drawbacks must be examined. The major part of the article will be dedicated to pointing out an alternative road towards a European private law, a road much more in tune with the historical development of the ius commune which existed before the codifications, a ius commune so eagerly invoked by the present advocates of a European private law. 2. Current Methods of Creating a European Private Law: an Attempt at Categorization Roughly speaking, the attempts at creating a European private law may be divided into three categories. All three are characterized by the authoritative imposition or formulation of rules or principles. The most familiar method is that of harmonization through Directives of the European Union. In the field of private law, this road has been followed, in particular, to effect uniform consumer protection: major examples are the Directives on doorstep selling (1985), product liability (1986), consumer credit (1986), package travel (1990), unfair terms in consumer contracts (1993) and time sharing (1993). It has been said that consumer protection is the motor of private law development within the European Union.5 Its drive, however, is limited: directives result in European private law for a very limited area, which is also rather fragmentary. The result is `a Brussels brick here and there within the national private law building'.6 The character of harmonization - the objectives are centrally formulated, but the way in which they are attained are at the discretion of the Member States - also entails that in first instance the Member States (read: their governments) are responsible for bringing their law in line with the directive. As a result of this embedding into national law however, it is difficult to establish, after a directive has been issued, whether and to what extent implementation and judicial interpretation have left uniformity intact.7 Incidentally, this first objection is not really felt within the various national private law systems. This is remarkable: one would expect isolated pieces of `European' law not only to be odd ducks among the national, organically grown private law order, but even to amount to viruses infecting the classical private law system. In practice, however, there is not such a big problem. Perhaps this can be explained as follows: on more than one occasion, it has been noted that consumer law has been conceived of as a collection of technical rules of a rather administrative law nature, rather than as `true' 5 Winfried Tilmann, `Towards a European Civil Code', 5 Zeitschrift für Europäisches Privatrecht (1997), 595 ff. For an overview of directives see Peter-Christian Müller-Graff, `Private Law Unification by Means other than Codification', in Towards a European Civil Code, op. cit. 30 ff. 6 Oliver Remien, `Über den Stil des Europäischen Privatrechts', 60 RabelsZ (1996), 8. 7 See, for instance, Müller-Graff, op. cit., at 22 ff. For other objections to harmonisation through directives see Kapteyn/Verloren van Themaat, Introduction to the Law of the EC, 2nd ed., (Deventer, 1989), 478 ff
private law. If this line of reasoning is correct, the systematic organization of private law, which is mainly based on autonomy of the indiduals, is not affected by such rules The argument that the pretensions to create a european private law have so far not gone beyond drafting rules of a more technical nature because the traditional system is not affected by them, can however not be maintained This brings us to the second way of establishing a European private law Secondly, more recently the idea has gained ground that a comprehensive resolutions,in 1989 and in 1994 10 calling for unification of private law in the ar optec European Civil Code(ECC)is feasible. The European Parliament has adopted major importance to the development of an internal market. As early as 1980, the Lando Commission, with financial support from the European Commission, has started the framing of the 'Principles of European Contract Law. The argument in favour of drafting these Principles, that thus the existing and future directives are provided with frameworkCa common legal environment), must however be taken with a grain of salt after what has been said earlier. The true underlying reason is, of course, that unification is conducive to trade. The first article of the lando principles states for that matter that they are meant as general principles of contract law in the EU, that they will be applied where parties so agree, and may be applied as an elaboration of the lex mercatoria or where the parties have not made a choice of law or where the applicable aw does not offer a solution The Principles possess, therefore, the status of soft law. This is not saying much the term soft law is a blanket term for all sorts of rules which are not enforced on behalf of the state, but are seen, for example, as goals to be achieved. The precise Iples Is ccording to the purpose is rather modest, but in the majority of the now ample literature the Principles are treated as if they were a legal system, on an equal level with national law developed over centuries, which is capable by itself of resolving disputes. The solution offered by national law is in that case compared with the one provided by the principles, although any applicable case law, based on the Principles, is still lacking. I do not shy away from defending the position that in the past few years, perhaps unconsciously, ideas on European codification have taken a u-turn. Initially, the project of drafting Principles was seen as useful, be it without much practical value. Today, the Principles are considered by many authors as the forerunner of a European Civil Code, which will be not soft law, but a binding instrument imposed by the competent institutes of the See the discussion presented in Franz Bydlinski, System und Prinzipien des privatrechts, (Wien, 1996), 718 ff. This is borne out by the fact that problems arise precisely in less consumer-oriented product liability regimes. Resolution on Action to Bring into Line the Private Law of the Member States, O.J. EC 1989 C158/400 1o Resolution on the Harmonization of Certain Sectors of the Private Law of the Member States O.J.EC1994C205/518 Lando, op. cit, at 265. Significantly, in the comments accompanying the Lando-draft directives are seldom cited Lando/ Beale(eds ) Principles of European Contract La, Part 1, (Dordrecht, 1995) See Petar Sar evi, Unification and'Soft Law, in Conflicts et harmonisation(Melanges Von Overbeek),(Fribourg. 1990),91 Error! bookmark not defined
Error! Bookmark not defined. private law.8 If this line of reasoning is correct, the systematic organization of private law, which is mainly based on autonomy of the indiduals, is not affected by such rules. The argument that the pretensions to create a European private law have so far not gone beyond drafting rules of a more technical nature, because the traditional system is not affected by them, can however not be maintained. This brings us to the second way of establishing a European private law. Secondly, more recently the idea has gained ground that a comprehensive European Civil Code (ECC) is feasible. The European Parliament has adopted resolutions, in 19899 and in 1994,10 calling for unification of private law in the areas of major importance to the development of an internal market. As early as 1980, the Lando Commission, with financial support from the European Commission, has started the framing of the `Principles of European Contract Law.' The argument in favour of drafting these Principles, that thus the existing and future directives are provided with framework (`a common legal environment'), must however be taken with a grain of salt after what has been said earlier.11 The true underlying reason is, of course, that unification is conducive to trade. The first article of the `Lando Principles'12 states for that matter that they are meant as general principles of contract law in the EU, that they will be applied where parties so agree, and may be applied as an elaboration of the lex mercatoria or where the parties have not made a choice of law or where the applicable law does not offer a solution. The Principles possess, therefore, the status of `soft law'. This is not saying much: the term `soft law' is a blanket term for all sorts of rules, which are not enforced on behalf of the state, but are seen, for example, as goals to be achieved.13 The precise nature of the Lando Principles is not very clear. According to the Preamble, their purpose is rather modest, but in the majority of the now ample literature the Principles are treated as if they were a legal system, on an equal level with national law developed over centuries, which is capable by itself of resolving disputes. The solution offered by national law is in that case compared with the one provided by the Principles, although any applicable case law, based on the Principles, is still lacking. I do not shy away from defending the position that in the past few years, perhaps unconsciously, ideas on a European codification have taken a u-turn. Initially, the project of drafting Principles was seen as useful, be it without much practical value. Today, the Principles are considered by many authors as the forerunner of a European Civil Code, which will be not soft law, but a binding instrument imposed by the competent institutes of the 8 See the discussion presented in Franz Bydlinski, System und Prinzipien des Privatrechts, (Wien, 1996), 718 ff. This is borne out by the fact that problems arise precisely in less consumer-oriented product liability regimes. 9 Resolution on Action to Bring into Line the Private Law of the Member States, O.J. EC 1989 C 158/400. 10 Resolution on the Harmonization of Certain Sectors of the Private Law of the Member States, O.J. EC 1994 C 205/518. 11 Lando, op. cit., at 265. Significantly, in the comments accompanying the Lando-draft directives are seldom cited. 12 Lando/Beale (eds.), Principles of European Contract Law, Part 1, (Dordrecht, 1995). 13 See Petar Šar_evi_, Unification and `Soft Law', in Conflicts et harmonisation (Mélanges Von Overbeek), (Fribourg, 1990), 91
Union Let me substantiate the above as follows: in the initial stages of the Principles project, there was not much concern for its possibly unifying effect. The Principles, it was thought, were not intended to create uniform law. But these days, perhaps because of the influence of the European Parliament's two Resolutions, the outlook is quite different. It is not just scholarly writers who are concerned about the Principles''soft' status,they are also a hot political item. At a recent conference entitled Towards a European Civil Code, which was held when the Netherlands was holding the Presidency of the European Council, almost the entire morning session was devoted to finding a possible legal base in Community Law for the authority to impose mandatory rules of private law, was a separate treaty needed, was article K3 of the third pillar the legal base, or could a legal base be found in Articles 100 and 100a EU Treaty? In short the question was how to make mandatory law from soft law. The emphasis, therefore, was not on substantive private law aspects, but on the question of competence: the Principles could be incorporated, if necessary in an amended form, into a European codification providing a legal base was found in Community Law for imposing the Thirdly, the more traditional unification method-through binding treaties-is also characterized by the imposition by the state of law on organs which have to implement it. I discuss this method in the last place, because virtually no uniform abstantive property, contract or tort law has been created by this method. The reason for this is quite interesting: since, in order to be binding treaties, unanimity of the Treaty drafters and ratification by the national States are needed, they cannot play a major part in unifying private law. Where, in a context other than a European, binding treaties have been entered into, this has resulted in either conforming to a single legal system (the Hague Conventions on the International Sale of Goods), or a flight into vague formulations by way of compromise(UN Convention on the International Sale of Goods CISGD. It is quite remarkable that, whereas evidently where treaties were concerned the view prevailed that the differences between the systems were too great for achieving a successful unification through a binding instrument, now a quest has begun for a legal base in Community Law in order to coerce the ECC The current attempts to achieve a European private law can be characterized therefore as virtually totally authoritarian The ecc is much more a political rather than a legal challenge. This is striking since, in the national systems, legal positivism has been given up for the most part. Even in The Netherlands, where with the introduction of the new Dutch Civil Code in 1992 a greater fixation on state-imposed rules could be expected, judges are afforded such a degree of discretionary freedom that it is in fact Cf. Daniela Caruso: The Missing View of the Cathedral: The Private Law Paradigm of European Legal Integration, 3 European Law Journal(1997), 12, who states that the ongoing project of European integration is now transforming the rediscovery of the ius commune from a mere intellectual curiosity to fashionable political discourse 16 or Instance, Muller-Graff, op cit, at 27 The Hague 28 February 1997. See on this Nederlands Juristenblad(1997), 637 ff. and Zeitschrift fir Europaisches Privatrecht 5(1997), 595 ff. Cf. Gerhard Kegel, Internationales Privatrecht, 7th ed, (Munchen, 1991), 60 ff. Error! bookmark not defined
Error! Bookmark not defined. Union.14 Let me substantiate the above as follows: in the initial stages of the Principles project, there was not much concern for its possibly unifying effect. The Principles, it was thought, were not intended to create uniform law. But these days, perhaps because of the influence of the European Parliament's two Resolutions, the outlook is quite different. It is not just scholarly writers who are concerned about the Principles' `soft' status, 15 they are also a hot political item. At a recent conference entitled `Towards a European Civil Code',16 which was held when the Netherlands was holding the Presidency of the European Council, almost the entire morning session was devoted to finding a possible legal base in Community Law for the authority to impose mandatory rules of private law; was a separate treaty needed, was article K3 of the `third pillar' the legal base, or could a legal base be found in Articles 100 and 100a EU Treaty? In short: the question was how to make mandatory law from soft law. The emphasis, therefore, was not on substantive private law aspects, but on the question of competence: the Principles could be incorporated, if necessary in an amended form, into a European codification providing a legal base was found in Community Law for imposing the Principles. Thirdly, the more traditional unification method - through binding treaties - is also characterized by the imposition by the state of law on organs which have to implement it. I discuss this method in the last place, because virtually no uniform substantive property, contract or tort law has been created by this method. The reason for this is quite interesting: since, in order to be binding treaties, unanimity of the Treaty drafters and ratification by the national States are needed, they cannot play a major part in unifying private law.17 Where, in a context other than a European, binding treaties have been entered into, this has resulted in either conforming to a single legal system (the Hague Conventions on the International Sale of Goods), or a flight into vague formulations by way of compromise (UN Convention on the International Sale of Goods [CISG]). It is quite remarkable that, whereas evidently where treaties were concerned the view prevailed that the differences between the systems were too great for achieving a successful unification through a binding instrument, now a quest has begun for a legal base in Community Law in order to coerce the ECC. The current attempts to achieve a European private law can be characterized therefore as virtually totally authoritarian. The ECC is much more a political rather than a legal challenge. This is striking since, in the national systems, legal positivism has been given up for the most part. Even in The Netherlands, where with the introduction of the new Dutch Civil Code in 1992 a greater fixation on state-imposed rules could be expected, judges are afforded such a degree of discretionary freedom that it is in fact 14 Cf. Daniela Caruso: The Missing View of the Cathedral: The Private Law Paradigm of European Legal Integration, 3 European Law Journal (1997), 12, who states that the ongoing project of European integration is now transforming the rediscovery of the ius commune from a mere intellectual curiosity to fashionable political discourse. 15 For instance, Müller-Graff, op. cit., at 27. 16 The Hague 28 February 1997. See on this Nederlands Juristenblad (1997), 637 ff. and Zeitschrift für Europäisches Privatrecht 5 (1997), 595 ff. 17 Cf. Gerhard Kegel, Internationales Privatrecht, 7th ed., (München, 1991), 60 ff
the courts which determine the law. To accomplish a European private law by imposition is, in any case, not compatible with the legal Zeitgeist, because it is expression of faith in a centralist political authority: the idea that the European Union able to create uniform law, coupled to legal certainty and predictability, by merely introducing a uniform text, is-as Legrand has noted-a view straight from the Napoleonic era, a legacy of the simplified and mechanistic world view entertained The mere fact that a mandatorily imposed European private law does not accord with the Zeitgeist, is not sufficient reason, of course, to give up the attempt to create a European private law. For further reflection, it is conducive to discuss below the arguments of the most outspoken opponent of a ECC, Pierre Legrand 3. A Successful European Private Law? Legrand, who, being a Canadian, has been privy to the strenuous relations between Anglo-American and continental-European law in his own country, has put forward his uments against a European Civil Code in a number of articles. His most important proposition is that merely drafting uniform rules does not result in uniform lanv. The law is, after all, much more than just formally uniformed rules the meaning of a particular rule in a particular cultural and national context can only be established after studying that context. The legal mentalities within the various cultures are different, after all. They are even irreconcilable in the case of continental and English law Epistemologically, the reasoning in Common Law is inductive with an emphasis on facts and legal precedent; in Civil Law the focus is on systemization. Whereas Civilian lawyers try to fit a legal decision into a logical system, Anglo-American jurists abhor formal rules and consciously choose to shun and counteract continental Civilian influence. This choice derives from unbridgeable differences: an English child is a common-law-lamwyer-in-being long before it even knows whether it will read law. No matter the degree of European legislation, an Englishman will see it with Common Law eyes, a Frenchman with Civilian. This has led Legrand to the poignant conclusion that egal systems(.)have not been converging, are not converging and will not converging Legrand backs up his argument that a uniform text lacking the necessary rationality and morality to effect it, will never lead to uniform law, with a number of Pierre Legrand, Against a European Civil Code, 60 Modern Law Review(1997),59:the idea of a European Civil Code belongs to another era. Europeen, ve loe European legal systems are not converging, 45 International and Pierre Legrand uarterly(1996), 52 ff, same author, ' Sens et non-sens d'un Code Civil Revue internationale de droit Compare(1996), 779 ff, same author, Against a Legrand 1996, at 60, cf. 1997, at 59: Jus is not reducible to lex Legrand 1996, at 74, Legrand 1997, at 46 ff. Legrand 1997, at 51 Legrand 1996, at 61-62 Error! bookmark not defined
Error! Bookmark not defined. the courts which determine the law. To accomplish a European private law by imposition is, in any case, not compatible with the legal Zeitgeist, because it is an expression of faith in a centralist political authority: the idea that the European Union is able to create uniform law, coupled to legal certainty and predictability, by merely introducing a uniform text, is - as Legrand has noted - a view straight from the Napoleonic era, a legacy of the simplified and mechanistic world view entertained by positivists.18 The mere fact that a mandatorily imposed European private law does not accord with the Zeitgeist, is not sufficient reason, of course, to give up the attempt to create a European private law. For further reflection, it is conducive to discuss below the arguments of the most outspoken opponent of a ECC, Pierre Legrand. 3. A Successful European Private Law? Legrand, who, being a Canadian, has been privy to the strenuous relations between Anglo-American and continental-European law in his own country, has put forward his arguments against a European Civil Code in a number of articles.19 His most important proposition is that merely drafting uniform rules does not result in uniform law. The law is, after all, much more than just formally uniformed rules: the meaning of a particular rule in a particular cultural and national context can only be established after studying that context. The legal mentalités within the various cultures are different, after all.20 They are even irreconcilable in the case of continental and English law. Epistemologically, the reasoning in Common Law is inductive with an emphasis on facts and legal precedent; in Civil Law the focus is on systemization.21 Whereas Civilian lawyers try to fit a legal decision into a logical system, Anglo-American jurists abhor formal rules and consciously choose to shun and counteract continental Civilian influence. This choice derives from unbridgeable differences: an English child is a common-law-lawyer-in-being long before it even knows whether it will read law.22 No matter the degree of European legislation, an Englishman will see it with Common Law eyes, a Frenchman with Civilian. This has led Legrand to the poignant conclusion that `legal systems (...) have not been converging, are not converging and will not be converging.'23 Legrand backs up his argument that a uniform text lacking the necessary rationality and morality to effect it, will never lead to uniform law, with a number of 18 Pierre Legrand, `Against a European Civil Code', 60 Modern Law Review (1997), 59: `the idea of a European Civil Code belongs to another era.' 19 Pierre Legrand, `European legal systems are not converging', 45 International and Comparative Law Quarterly (1996), 52 ff., same author, `Sens et non-sens d'un Code Civil Européen', Revue Internationale de Droit Comparé (1996), 779 ff, same author, `Against a European Civil Code', 60 Modern Law Review (1997), 44 ff. 20 Legrand 1996, at 60, cf. 1997, at 59: `jus is not reducible to lex'. 21 Legrand 1996, at 74, Legrand 1997, at 46 ff. 22 Legrand 1997, at 51. 23 Legrand 1996, at 61-62