21 January 2010

Hesselink and the new European legal culture -- ten years on

Ten years ago, Martijn W Hesselink wrote The new European legal culture (2001). More recently, he’s recently written a short article entitled ‘The new European legal culture – ten years on’ reflecting on the earlier work. That article

is a postscript to The New European Legal Culture which was written for the Chinese translation almost a decade after the original essay was published. That essay argued that Europe was facing a shift from a rather formal, dogmatic and positivistic approach to a more substance-oriented and pragmatic approach to private law.

Ten years on, has the trend towards a new, less formal legal culture in Europe been confirmed or is there now a reverse tendency? As this paper points out, the picture is mixed: there are both examples of neo-formalism and new examples of a more substantive approach to private law. Four milestones and their implications for European legal culture are addressed: the sudden end of the postmodern era after 9/11, the failed European constitution and related neo-nationalism, the arrival of the new Member States, and the CFR process.

Surprisingly, he argues that

Overall, today the neo-formalist tendencies seem to be stronger than a decade ago.

Check out the article (and the original if you haven’t read it) and let us know what you think.

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