Provisions on Legal Method in Continental Civil Codes Methodennormen in kontinentaleuropäischen Kodifi kationen - 10.1628/003372511797638198 - Mohr Siebeck

Christiane Wendehorst

Provisions on Legal Method in Continental Civil Codes Methodennormen in kontinentaleuropäischen Kodifi kationen

Jahrgang 75 () / Heft 4, S. 730-763 (34)

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of an impact. A look back into history reveals that the provisions in question have origins of a mostly political nature, mirroring the power dynamic between the monarch or parliament on the one hand and the judiciary on the other, securing separation of powers or reacting to major historical developments such as the French Revolution. Also, these provisions are intrinsically linked with the emerging idea of private law as state law and with the codification movement taking place in Europe beginning in the late 18th century, underlining the positive nature of the law as well as the integrity of the codification. Originally, they had thus not been designed to provide much practical guidance with statutory construction or similar tasks. The absence of uniform legal methods often comes to be considered as a main obstacle to European legal integration. A restatement of the written and unwritten rules of legal method in Europe might be an interesting academic venture, but the practical impact would probably be very limited. What seems much more promising is to draft provisions on the autonomous methodology of EU law and its interplay with national law. This would not only provide a certain sensitisation of the legal community, but also help preserve the integrity of national codifications. In order to provide practical guidance in everyday legal work, such provisions would, however, have to be very different from the provisions on legal method currently featured in continental civil codes.

Christiane Wendehorst Geboren 1968; 1988–93 Studium der Rechtswissenschaften in München; 1993–98 Wiss. Mitarbeiterin am Institut für Internationales Recht, Rechtsvergleichung an der Universität München; 1994 Promotion; 1997–98 Forschungsaufenthalt an der University of Cambridge/UK; 1998 Master of Law; 1998 Habilitation in München für Bürgerliches Recht, Handelsrecht, Internationales Privatrecht, Rechtsvergleichung und Methodenlehre.