The Principles of European Contract Law and the Concept of the "Creeping Codification" of Law

Abstract

The Principles of European Contract Law, along with other private initiatives such as the UNIDROIT Principles of International Commercial Contracts, pose new problems for legal theory. What is the status of such principles and how can they be used? Berger examines these issues from the perspective of "creeping codification" of transnational law - the idea that slowly and gradually by reference to such principles a uniform private law will emerge. The modern European situation re-enacts the debate between the Thibauts and the Savignys in 19th century Germany: the debate between those who propose early codification and those who seek to develop a political harmony between the law and its subjects. "Creeping codification" reflects the viewpoint of the Savignys. Principles and restatements may be used by national and supranational law makers (legislators and courts), referred to by the parties to an agreement, and built into legal education. This is a process which is already beginning to occur. The existence of specific, written principles rather than open-ended "general principles" of transnational law greatly facilitates the possibility of recognition and use. Because of their private origins, one of the tasks for the promoters of such principles is to ensure that they are well marketed, so that they can obtain maximum use. The "soft law" nature of such rules nevertheless renders them sufficiently flexible that they can easily be modified to suit new conditions and thus better reflect their environment.