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Will the French Civil Code survive European construction?
Marc Gjidara
Sažetak
The French Civil Code, despite all of its prestige, is perhaps condemned to disappearance due to European construction whose objective is, as it has been shown, to establish not only harmonised national laws, but also uniform, fully integrated law which would regulate all social relations.
The philosophy of human rights and case law of the Court in Strasbourg determine new ideals, and the European Union develops some kind of civil supra-law which provides for regulation of private relations, the same as Community law regulates the economic and political space. The national judge is the one whose task is to conform national rules to this new “law above law”, under the control of European judges, whose interpretations are imposed on all, and may also be changed abruptly. This leads to permanent re-examination, causing the emergence of new subjective rights and comparative study in civil law. The creation of Community law itself implies legal cooperation and reciprocal understanding of the law of partners in the domains of regulation. The acquis communautaire concerns all branches of law. Thus frequently some “law from somewhere else” takes priority over internal law and the national judge is obliged to give priority to it over the state norm.
Federalisation of Europe, which is not always called like this, imposes the idea that uniform law should also correspond to single currency. Codification of European private law has been encouraged for some twenty years. The idea of the European civil code progresses, provoking contradictory reactions, notably in France. Legitimacy of projects and methods of operation are criticised, although European contract law may seem suitable to the many. The principle of legal unification is less contested than its domain and methods of operation. The difficulty is, therefore, in conciliation of necessary uniformity of changes with due respect for diversity of particular traditions, which is the factor of flexibility and modernisation.
It is the political concept of Europe that is in question. Although the single market is a reality, legal foundations of European codification are still uncertain, and technical obstacles have not been surmounted yet. Economic justification of Europeanisation of law may not neglect the necessity of respect for nations, their languages and their cultures, on which the present European order is based. Unification of civil law should be free form technocratic considerations, it has to exclude every trace of hegemony and reach consensus of opinion. Unitary Europe and Europe of regions cause concern and federalism is not a synonym for uniform civil law. The national state has not become anachronistic, because democracy is inseparably connected with it. There is an apparent problem of redefining the division of competences between the Union and Member States. The European civil code remains a delicate topic and France persists on respect for pluralistic legal culture and legal multilingualism which continue to be the richness of Europe. Nevertheless, the question of the reform of its prestigious Civil Code remains, taking into account constant internationalisation of rules, while avoiding the risks inherent in the phenomenon of strengthening the community connected with mingling of population. What is in question is the French Civil Code as a civil constitution which is a guarantor of cohesion and lay foundations of the State and society of this country.
Ključne riječi
human rights; principles of priority and subsidiarity; codification; interpretation; legal unification and harmonisation; mercantilism; acquis communautaire; political legitimacy; cultural heritage; social cohesion; legal competition and multilingualism
Hrčak ID:
5066
URI
Datum izdavanja:
20.6.2006.
Posjeta: 3.045 *