Code vs. Code: Nationalist and Internationalist Images of the Code Civil in the French Resistance to a European Codification

Abstract:
French academics reacted to announcements about a possible future European civil code ten years ago in the way in which Americans reacted to the Japanese attack on Pearl Harbor 1940: first with shock, then with rearmament, finally with attempted counterattacks. Military metaphors abound. Yet the defense of the French Code Civil against a European civil code is tricky: they must defend one Code against another. The images drawn of codes are therefor of particular interest for our understanding both of civil codes and of legal nationalism. Often, two mutually exclusive images are presented at the same time. In cultural terms, the code civil is both traditional and revolutionary, both linguistically determined and independent of its language, both an expression of values and merely formal and neutral. Politically, the code civil is legitimated both in democracy and technocracy, it expresses both self-determination and imperialism, it is about both pluralism and universalism. Necessarily, in such juxtapositions, the same characteristics must be assigned to a European Code, making the arguments ultimately self-refuting. Nonetheless, the point is not to dismiss these defenses. Rather, they should be understood as expressions of faith — and the discussion over a European Code resembles, in part, a religious war.

Michaels, Ralf, Code vs. Code: Nationalist and Internationalist Images of the Code Civil in the French Resistance to a European Codification (May 22, 2012). European Review of Contract Law, Vol. 8, Forthcoming 2012.

Stare Decisis - A Universally Misunderstood Idea?

Abstract:
In this article, I argue against the overstatement of the binding effects of precedent in common law and against the understatement of the relevance of precedent in civil law. I try to show that judges and courts in both kind of systems have to acknowledge relevant precedents and then provide persuasive reasons for following or not following them. Blindly following precedent, just as blind application of statutes, is acceptable only in the 'empire of mechanical jurisprudence'. Ignoring precedent in the name of judicial independence, on the other hand, is acceptable only in the empire of arbitrary jurisprudence. Legal systems subscribing to the rule of law can neither be mechanical nor arbitrary. They have to care about legitimacy of the judicial process. They have to explain themselves and they have to do so persuasively.

Emmert, Frank, Stare Decisis - A Universally Misunderstood Idea? (May 7, 2012).

From Administrative Law to Administrative Legitimation? The Spatiality of Law and Transnational Administrative Law in Comparative Perspective

Abstract:
Globalisation redefines the relationship between law and space, resulting in the emergence of transnational administrative law in a globalising legal space. I aim to shed light on transnational administrative law by examining how administrative law relates to the process of European integration. I argue that the idea of administrative legitimation is at the core of this relationship. In the European Union, transnational administration grounds its legitimacy on the fulfilment of administrative law requirements. However, given that in the European Union, administrative legitimation is rooted in Europe’s constitutional transformation, I caution against the projection of Europe’s experience onto global governance.

Kuo, Ming-Sung, From Administrative Law to Administrative Legitimation? The Spatiality of Law and Transnational Administrative Law in Comparative Perspective (2012). International & Comparative Law Quarterly, Forthcoming ; Warwick School of Law Research Paper No. 2012/12.