The Draft-Common Frame of Reference, Methodological Nationalism and the Way Forward
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Jan M. Smits
Abstract
This contribution claims that the Draft Common Frame of Reference (DCFR) for a European Private Law (2008) suffers from so-called methodological nationalism: the DCFR adopts a view of law and lawmaking developed for national societies and in doing so, it takes too little into account that what is best at the national level may not be optimal at the European one. This is demonstrated by reference to three different features of the Draft-CFR: the idea of comprehensive codification, the choice of the relevant rules and the way in which law is represented. European private law should be presented in a differentiated way, dependent on whether its function is to create binding rules, offer a source of inspiration for legal scholarship and teaching or form the first step towards the creation of an optional contract code.
Articles in the same Issue
- Editorial
- The Structure of the DCFR – Which Approach for Today's Contract Law?
- Common Frame of Reference & Social Justice
- The Draft-Common Frame of Reference, Methodological Nationalism and the Way Forward
- Sense and Sensibilities: The DCFR and the Preservation of Cultural and Linguistic Plurality
- Pre-contractual Duties in the Draft Common Frame of Reference – What Relevance for the Negotiation of Commercial Contracts?
- The Draft Common Frame of Reference: Mistake and Duties of Disclosure
- Good faith and fair dealing in the DCFR
- The Draft Common Frame of Reference – Agency Authority and Its Scope – A Glance at Corporation Law
- The DCFR – Guarantee and Personal Security Contracts
- Burden of Proof in the Consumer Acquis and in the Draft Common Frame of Reference: Law, Fact and Things in Between
- The DCFR – Restitution, unjust enrichment and related issues
- EC Legislation. European Community Legislation and Actions
- Italy
- Free Movements and Contract Law
- Books Received and Book Reviews
Articles in the same Issue
- Editorial
- The Structure of the DCFR – Which Approach for Today's Contract Law?
- Common Frame of Reference & Social Justice
- The Draft-Common Frame of Reference, Methodological Nationalism and the Way Forward
- Sense and Sensibilities: The DCFR and the Preservation of Cultural and Linguistic Plurality
- Pre-contractual Duties in the Draft Common Frame of Reference – What Relevance for the Negotiation of Commercial Contracts?
- The Draft Common Frame of Reference: Mistake and Duties of Disclosure
- Good faith and fair dealing in the DCFR
- The Draft Common Frame of Reference – Agency Authority and Its Scope – A Glance at Corporation Law
- The DCFR – Guarantee and Personal Security Contracts
- Burden of Proof in the Consumer Acquis and in the Draft Common Frame of Reference: Law, Fact and Things in Between
- The DCFR – Restitution, unjust enrichment and related issues
- EC Legislation. European Community Legislation and Actions
- Italy
- Free Movements and Contract Law
- Books Received and Book Reviews
