Civil Justice as Governance in the European Union: Reflections on Civil Procedure, Private International Law (Conflict of Laws) and the Administration of Justice since the Roman Empire

Abstract

The paper examines the ongoing Europeanisation of civil justice in the European Union through a broad historical lens that looks back to the Roman Empire. The topic of civil justice in the European Union ('EUstitia') is briefly introduced (section 1). Next, a brief overview of key features of the EU legal order serves to frame the historical narrative (section 2). The panorama of European legal history (section 3) is organized around the themes of legal pluralism and its relationship to private international law, the administration of justice, and civil procedure. The historical analysis shows that the civil justice component of the EU's Area of Freedom, Security and Justice ('AFSJ') makes use of governance tools that have been deployed in Europe for millennia. The administration of justice was a key technique for maintaining power and order throughout a large territory, both during and after the Roman Empire; procedural law and legal culture played major roles in that construction. The historical analysis provides context that illuminates the significance of changes taking place today in the EU's s civil justice field (section 4).Developments in the EU's civil justice field are relevant to contemporary debates about European private law and the ius commune, insofar as the fate of European private law is inextricable from the institutional settings and procedural contexts in which substantive legal questions arise (section 3.1.5). Moreover, the EU's recently acquired power to legislate on matters of civil procedure is a significant step in the direction of state-building (section 3.2.2). Similarly, with regard to private international law (conflict of laws), the EU's new 'vertical' authority over the 'horizontal' allocation of regulatory authority among the Member States is a crucial governance power that empowers the EU to define the reach of national jurisdiction (section 3.2.2). New institutional theory facilitates our understanding of the dynamic interrelationships among courts, procedures, legal cultures, and substantive law (section 3.2.2).