The end of the Cold War enthused many in the European private law world to think in terms of unity and global values. Academic bees collected the honey of the national flowers and brought it to the European honeycomb where the queen-bee of European harmony was watching the work with approval. Only more recently, the importance of diversity and local values has become more apparent. Knowledge gained in social sciences in general and marketing in particular provides an empirical basis to think about cultural diversity and to link it to (private) law issues. This paper discusses three fundamental legal differences between German, French and English tort law: the role of rights, strict liability and liability for lawful acts by a public body. Their common theme is the balance between victim protection and individual freedom. These legal differences are then linked to the cultural dimensions developed by sociologist Geert Hofstede to 'measure' differences between national cultures. Hofstede argues that these differences have existed for centuries and that there is no reason they should not remain recognisable for the next century. The paper's subsequent analysis suggests that differences in national rules are strongly linked to cultural identity and that, therefore, cultural and legal diversity are in Europe to stay. In the light of this analysis, the paper discusses the feasibility of European cooperation, the relation between Articles 95 and 151 EC Treaty, the costs of maximum harmonisation of national private laws in terms of welfare loss (i.e. loss of cultural identity), and the desirability of a ius commune agenda focusing on understanding the reasons for legal diversity rather than on drafting common rules and principles that run the risk of fossilising the development of the law.
Document Type: Research Article
Publication date: July 1, 2009
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Until 2007 the King's Law Journal was known as the King's College Law Journal. It was established in 1990 as a legal periodical publishing scholarly and authoritative Articles, Notes and Reports on legal issues of current importance to both academic research and legal practice. It has a national and international readership, and publishes refereed contributions from authors across the United Kingdom, from continental Europe and further afield (particularly Commonwealth countries and USA). The journal includes a Reviews section containing critical notices of recently published books.