National, European, or Global

This chapter addresses the Europeanization of contract law from a normative perspective: can the Europeanization of contract law be justified? Or are there more convincing reasons why contract law should remain national or become global? Do we perhaps have a moral right to a European civil code? Or, conversely, are we entitled to make our contract law entirely national again? Should the integrity of national legal cultures be respected, or should a (re)nascent European legal culture be fostered? The chapter aims to provide a better explanation of why and how the question of the Europeanization of contract law has been so divisive and why neither the status quo, nor fully undoing the Europeanization of private law, nor indeed a move fast forward towards a European civil code, seem today to be alternatives commanding widespread support.

THE DUTCH COLONIAL ECONOMIC’S POLICY ON NATIVES LAND PROPERTY OF INDONESIA

This paper analyzes the historical shifts of land property rights in Indonesia's archipelago and how new land laws were formed, especially during the Dutch colonization era. After the Netherlands East Indies (NEI) established in the 18th century and proclaimed itself as a sovereign landlord over the East Indies (Indonesia), the role of indigenous law (adat law) and its rights to lands have diminished by a new form of law namely the European law system (the civil code). By adopting the European civil code, the colonial Dutch declared all uncertified lands and all forests’ resources were the Dutch colonial State's property and to be managed by the colonial authority [State’s domain]. For Adat peoples, these rights belong to them, either as individuals or as groups, and it had been recognized by their customary law (adat law) legally, which they have had since their ancestors inhabited within the land, territories, and resources. Further significant impact toward the adat rights to land, when the Agrarian Act (agrarisch wet) applied in 1870 by the colonial government, had severely impacted towards the land right of indigenous peoples in Indonesia, by which most of them had lost their adat property right to lands and forest resources. In contrast, the Dutch colonial State was gained millions of guldens for economic profit from the expropriation of the native land and from unpaid native slaves who worked in the Dutch plantation sectors.

LEGALLY RELEVANT DAMAGE

The author analyzes legally relevant damage - a concept used by the Study Group on European Civil Code in order to define those losses for which a legal redress is given under the tort law. There are eleven particular instances of legally relevant damage caused either to one’s personality, rights or property. What is also important are the infringements of other rights and interests, but they need to satisfy additional criteria in order to be recognized as legally relevant damage. Only such rights that enjoy protection against everyone are protected, therefore, anyone can infringe them. Interests are also protected if they satisfy the requirements to be worthy of legal protection.

Europeanization of private law as a hermeneutic and civilistics problem: an approach to the interpretation law institutionalization

The article deals with the problems of the civilistic institutionalization of the interpretation law in the context of the Europeanization of private law. The basis of this study is the application of civilistic methods to investigate this problem. This article deals with the comprehensive study of the legal integration of the private law systems of the EU Member States and other European countries. In Comparative Law, this process is called Europeanization of private law. This is a broad topic that raises many questions. The issue of Europeazation of private law is an extremely multi-faceted problem. The current economic crisis is a challenge for the Europeanization of private law. There is a need to exchange experience in interpreting the concept of European Private Law after the 2016 Brexit referendumand to propose a common way of a coherent Europeanization policy strategy on this basis. In this context, Europeanization can be defined equally simply and broadly as a type regional international integration. However, this meaning is not so simple. Suddenly, after the 2016 Brexit, EU self-identification with all Europe is destroyed by one act. All this happened because level of European Union identification was very excessive. European academic lawyers spoke about it previously. In particular, it was stressed that they do not subscribe to the overly European Union-centric notion «Europe» that the term «Europeanization» implies. However, they went along with the widely used term «Europeanization», while noting its obvious inaccuracy. The «extremist wing of the Europeanization brigade» have tended to view the European states as little more than passive recipients duly implementing dictate of Brussels. Now Europeanization of private law for all EU member states should be understood as the «EU-ization», but it should take the form of a legal harmonization too. Europeanization of private law for all States, including Ukraine, should be interpreted as the legal cultural process or the common base of the harmonization of laws. And for this purpose academic lawyers should use this term as referring to the cross-culture comparing of legal paradigms at the domestic level. These paradigms could be the keys for understanding the legal convergence problem. They go to the very heart of the national (domestic) legal systems in Europe. Under these conditions, the concept of codification of private law in the form of a European civil code is hopelessly outdated. More promising is the way to approximate the mechanisms of legal interpretation. Indeed, there are all indications of the formation of a new civilistic institute, called the right of interpretation. This institute comes from ancient Roman ius interpretatio. That is why this modern institutionalization is a reception of Roman law interpretation. The article concludes that a coherent methodology is needed to clarify the process of institutionalizing the law interpretation. Therefore, there is a need to develop a new type of doctrine – the civilistic theory of law of interpretation. Key words: European private law, Europeazation of private law, law of interpretation, doctrine, civilistic methodology.

The Draft Common Frame of Reference (DCFR) as a Basis for a Modern Codification – The Revised Moldovan Civil Code

Comparing the structures of the general contracts, the consumer law, the general obligations and the specific obligations it is striking that the new Moldovan Civil Code, which came into force on 1st March 2019, is widely influenced by the DCFR of 2009. Ten years later, the Moldovan legislator combined modern European ideas with traditional approaches and brought them together to one national Civil Code. Even if a coherent European Civil Code does still not exist, the analysis illustrates how important the work on harmonisation is and shows not least the success of the DCFR aimed to be a role model for future national legislations.

The harmonisation of private law in Europe and children's tort liability: a case of fundamental and children's rights mainstreaming

The debate around private law harmonisation in the EU has gradually moved from a narrow scope of market-related issues to the creation of a European civil code. The relationship between this process and children’s rights is, however, rarely acknowledged. The political, social and legal legitimacy of these harmonisation efforts have come under strict scrutiny, but hardly ever from the point of view of children. This article explores the impact of the process of legal harmonisation on children’s rights, and uses the issue of children’s tort liability as a case-study. The legal solutions in this field are analysed and compared, and the academic proposals for harmonisation are assessed. This choice of subject and approach allows us to assess the advisability of further harmonisation, illustrate the importance of socio-economic factors in this process, and highlight the relevance of children’s rights and fundamental rights to this debate.

Brexit. Or, Is the European Union Educable?

In an essay from 1998 the comparative law scholar Pierre Legrand asked the question “are civilians educable?” It was a theme that had preoccupied him for some years as he agonized over what he regarded as the intolerant, totalizing, and normalizing manner in which civilian legal systems and their acolytes encounter other legal traditions. He had documented, for example, the ways in which Quebec's new 1994 Civil Code constructively sought to suppress and exclude the significant and historically relevant Anglophone community in Quebec. Legrand argued that this domineering posture is a product of the civil law's cosmological and autarkic mentality. “The difficulty,” Legrand lamented, “is that the civil law mind … is reflexively imperialistic … because of its penchant for universalization.” Far more than his disquiet over the precarious future of Quebec's Anglophone community, Legrand came to be concerned about the fate of the English common law tradition in the face of the European Union's convergence agenda. This was, to Legrand's mind, an apocalyptic confrontation between England's still-proud legal culture and Europe's horsemen of convergence: the ECJ, the Commission, the Parliament. With increasing distress Legrand turned his attention to the way in which the European Community (and later the Union) “is liable to achieve … the marginalization of one of the subcultures that have defined western Europe historically.” He would go on to insist that “European legal systems are not converging” and to raise ever-more strident objections to the idea of a European civil code. This would not cease until Legrand had written “Antivonbar,” an incendiary manifesto aimed at salvaging the English common law from what he viewed as the Union's closed-fisted and violent politics of supremacy, which had taken the form of the proposed European Civil Code.