Over the past ten years, a lively debate on the harmonization of European private law has unfolded. Scholars joined forces to develop an academic draft for a future European civil code. The part on contract law was later taken as a starting point for the so-called optional instrument. This is a set of uniform and – so far – black letter rules on sales law, reflecting the common core of the different national private law systems. A proposed regulation is to enable citizens to choose this harmonized European contract law as the law applicable to their contract, as an alternative to national contract law.
Both the draft and the optional instrument were criticised for lacking doctrinal rigour and practical merit. In addition, doubt was cast on the need for and the legitimacy of these harmonization projects. Why would we need an optional instrument for European contract law? Proponents emphasized, in line with the European Commission, its potential for boosting transnational trade. It is hard to see what the problem is here though. Transnational trade within the European Union has been flourishing for years, without any optional instrument. On the point of legitimacy, one could question whether the harmonization of private law should not be initiated by private parties themselves and involve national governments and parliaments, rather than by a few legal scholars and the Commission.
Astoundingly, proponents of harmonization are now framing such criticism in terms of ‘nationalism’. Despite suffixes like ‘legal’ and ‘private law’, there is no doubt that the legal or private law nationalism they accuse their opponents of is not meant as a compliment. On the contrary. Criticism to the optional instrument is placed in the perspective of ‘an age of rising nationalism’ and ‘ignorance, myopia or fear of the foreign and the new’ (Hesselink). Legal culture should ‘finally’ step away from ‘the obfuscatory shadow of the Volksgeist’ (Comparato). If the French prefer their Code Civil over a European equivalent, they are defending a ‘premodern artefact’, while their reaction to an eventual European civil code could be compared to the American reaction to Pearl Harbour in 1940 (Michaels). Traditional French and English reluctance to European private law and common law and civil law rivalry could be seen as evidence of a ‘crypto-nationalistic’ discourse, containing hidden Europhobic rhetoric and resting on ‘sentimental and irrational argumentation’ (Sefton-Green).
If you find this hard to believe, read the contributions to the seminar Private Law and Nationalism, published in the European Review of Contract Law July 2012 issue. What happened to these scholars of reputation? What is possibly even worse than simply dismissing criticism as ‘nationalist’ is that this frame is presented as the outcome of a kind of critical legal studies exercise. While even the beginning of an argument on why opponents would be motivated by nationalism is lacking. Apart of course from the fact that they simply hold a different view.
Proponents of the harmonization of European private law are taking the debate to appalling levels. Grundmann is right to designate their accusations of nationalism as ‘absurd’ in his Editorial. We should return to a debate that does not need name-calling. In addition, we should accept that any future harmonization of European private law inevitably also involves a political choice. Neither advocating nor opposing a next step is a priori (il)legitimate. And anyhow it is a choice legal scholars, learned as they may be, should not impose on their polities.