521 Precedent in east and west [FNa1]

Abstract

Throughout Europe, academics have been active over the past decade in a half studying the desirability and feasibility of harmonizing private law. [FN1] The question may be raised-and that is precisely the question I wish to address here- whether or not even a fully harmonized private law will be applied the same way all over Europe. I will argue that this is not necessarily the case. In various legal systems, the law in action and the law in the books may differ from one another to varying degrees. Courts may interpret uniform law in line with national traditions. [FN2] One of these traditions has to do with precedent. The English common law, as is well known, is based on cases, whereas civil law systems are based on legislation. Furthermore, there are conflicting theories on the importance of precedent. [FN3] In this paper, I will explore to what extent these different approaches are converging in a Uniting Europe. [FN4] In fact, there are actually three approaches. I will argue that in civil law systems, two trends are discernable. In Western Europe, precedent plays an important role in practice, even when this is not always acknowledged in legal writing. In Central and Eastern Europe, *522 however, the practice is different. In the former socialist nations, precedent was not only denied a place as source of law, but the courts have often adhered to this doctrine-and perhaps still do- in fact. I will argue that this is not desirable, even apart from the question of harmonization. A possible fourth group of jurisdictions-those where western law has been exported beyond its host jurisdictions and where in the words of Patrick Glenn the problem of corruption has assumed massive proportions [FN5]--will be left out in this paper.