The Making of European Private Law: Toward a Ius Commune Europaeum as a Mixed Legal System.(Book Review)

Jan Smits, The Making of European Private Law: Toward A Ius Commune Europaeum as a Mixed Legal System (Antwerp: Intersentia, 2002). Pp. xv, 306.

At a time of expanding world views and increasing cross-border interaction arrives an exciting read in the debate about the ongoing unification of private law in Europe. Jan Smits, a professor of European Union Law at Maastricht University, explores how European private law is developing and seeks to offer an alternative approach through the use of examples of "mixed legal systems" with particular emphasis on the South African legal regime. Ten years after the signing of the Maastricht Treaty, Smits' work comes at an appropriate time when Europe could benefit from a more unified private law if it is truly to have a unified market. The book's description of the various methodologies of private law unification is one of its highlights. While these descriptions immediately pertain to a ius commune in Europe, they can also serve as platforms of discussion in other jurisdictions where unification is needed.

The book begins with a discussion on why there is a need for the development of a European private law. Indeed, Smits is nostalgic for the days when Roman Law was taught in universities throughout Europe, hoping that a true international legal science will once again emerge. However, the main argument for a unified European private law is based on political and economic reasons, not to mention motives of consumer protection which have already spurred a great deal of unification.

The first chapter is primarily an exploration of the centralist methods of private law unification, which Smits views as a less effective way of achieving unification. Although these methods have already had an impact on unification, Smits argues that they are fragmentary compared to the non-centralist methods. The centralist methods Smits describes are threefold: intervention by the European Union by means of legislation and its subsequent interpretation by the European Court of Justice; application of the European Convention for the Protection of Human Rights and Fundamental Freedoms by the European Court of Human Rights in Strasbourg; and finally through the means of separate treaty formation.

Of course, the ultimate unification of private law in Europe by centralist means, many argue, would be the creation of a European civil code, but Smits points out that this cannot be achieved without the political will and without first questioning whether such a code is desirable. One of many critiques of the claim that a civil code could create unification is that a uniform text would not be subject to uniform interpretation due to differing national legal cultures. Smits' main argument is that the imposition of a civil code is not ...