Kate O’Reilly, ‘Achieving the Uniform Application of European Private Law’

As a consequence of the current fragmented state of the consumer law acquis in the European Union (EU), the European Commission has indicated its desire to move away from the harmonization effort that has been achieved through directives towards the realization of uniform law that can be provided by (optional) instruments. In this article, the cultural barriers to the uniform application of legal transfers within the EU are considered. Through using Japan as a case study, this contribution constructs a method that can both predict and explain the process that a legal transfer undergoes during its transplantation into a foreign legal order. The constructed model employs an interdisciplinary approach by fusing anthropological and legal theory in order to explain the aforementioned process and has, as its starting point, the role that cultural obstacles play on the mind and actions of those actors who are in the position to ensure or preclude the correct application of a transplanted legal rule. This article concludes that education is the linchpin in determining behaviour, and, consequently, which perspective among the three perspectives generated by the model shall be employed, be it enculturation of traditional cultural values or formal education received in schools, universities, and working life. Subsequently, it is argued that culture is only as powerful as the weight attributed to a concept within the mind of the actor, the deep structures of law, and its link with culture are largely irrelevant.

Kate O’Reilly, ‘Achieving the Uniform Application of European Private Law’ (2015) 23 European Review of Private Law, Issue 6, 1027–1070.

First posted 2015-12-11 07:56:31

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