Conflict Avoidance in European Law

Abstract

The emergence of techniques for avoiding conflicts between different judicial systems has special significance in Europe owing to the differentiation among the laws of various states occasioned and accentuated by the nineteenth-century movement towards codification. Roman law, naturally, was the basis of those codifications, but it is well known that it was not their sole source of inspiration. Customary law (le droit coutumier), like that which developed in the north of France, played an important part throughout Europe, even in regions such as the south of France, where the influence of Roman law has been at its strongest. Moreover, with the growth of industrialization in the nineteenth century, divergencies among national economic and social structures have increased and have, thus, also contributed to the development of disparate legal elements. And the fact that the major codifications were spaced out over more than one century has had its effects as well. For example, the problems confronting the framers of the Napoleonic code in I804 were not the same as those confronting the framers of the Swiss civil code in I907. Finally, the basis of Roman law no longer applies as such, in spite of the reality of its partial influence, to English or Scandinavian law; and in recent times, Soviet law and the laws of various countries in East Europe have been seen to develop other tendencies based upon an entirely new model. Therefore, a growing need has long been felt to find a remedy for this dislocation of what has been called the old European common law. The method which has suggested itself naturally is that of treaties of unification, whether consisting of agreements between two countries, neighbors by tradition as well as by geography, or of a convention aimed at bringing together the largest possible number of countries. Alternative methods have been less promising. Thus, the phenomenon of uniform laws, well known in the United States, does not appear to have played in Europe more than an indirect role. The existence of foreign influences has, however, been recognized. For instance, a legislator may take inspiration from the laws or codes of another country, even transcribing, if necessary, the exact text of certain provisions. Thus, the Napoleonic code and certain of the German codes have inspired alike legislators in Europe, South America, and even the Near and Far East of Asia. Thus, in I926, Turkey was seen to adopt the Swiss civil code. But this borrowing has not resulted in any real integration of the laws concerned, nor has this propagation of similar provisions ever amounted to the promulgation of uniform laws for the countries involved. In practice, the only way