I have just seen an advert for a new book edited by Hans Micklitz and Fabrizio Cafaggi on “After the Common Frame of Reference”. The blurb refers to the DCFR as “very much a backwards looking 19th century codification project”.
I have a great admiration for Hans Micklitz. This is based not only on his work and his reputation but on a personal experience. He was due to speak at a conference at Trier last year. He encountered severe transport problems. Most people would have given up and phoned to say that unfortunately they couldn’t make it. He persevered. He took steps to overcome the problems, phoned to say he would be late in arriving and duly arrived minutes before he was due to speak. He then stopped at exactly the time when he had said he would stop, although he still had plenty to say. I was chairing that session and it is an enduring regret that I did not urge him to continue, particularly as he was saying some interesting, and on the whole positive, things about the rules of the DCFR on contracts for the provision of services. I was too inflexible. I was determined to allow enough time for discussion, which often gets squeezed out at such meetings. As it happened, there were fewer questions and contributions from the floor than might have been expected and I could easily have given Hans another 10 minutes. I owe him something and will give him the benefit of every possible doubt.
I have not met Professor Cafaggi but I have looked him up on the web and I like the look of what he is doing. I am prepared to give him too the benefit of every possible doubt and look forward to meeting him some day.
From that starting point, how do I react to the description of the DCFR as a “backwards looking 19th century codification project”? It would be possible to quibble about words. Of course, it is backwards looking. That was the remit – to look back at the existing laws in the Member States and the acquis and on that basis to construct a draft common frame of reference for better European law making in the future. It is not a codification project. The model rules are a code-like set of rules which are there to be used in any way anybody wants to use them. But I don’t want to quibble about words. I want to ask myself whether if I too were looking at the DCFR from the outside I might see it as a backwards looking 19th century codification project.
I suppose I might. At least, to be more accurate, I could see a certain way of looking at it as fitting this description. If anybody saw the DCFR as an attempt to express all, or even a large part, of the rules which are of relevance to the lives of citizens and enterprises of all kinds (public and private) in the modern Europe then I would be the first to say that that is not only a 19th century attitude but an early 19th century attitude. But of course it should not be seen in that way. At most it would be a very small part of the legal jigsaw. In the early 19th century it would have been the most important part. Now it would be relatively unimportant. That does not mean that it does not have importance or value - just that modern regulatory law, public law and what might be called public/private law has become more important – and will remain so. The jigsaw has got bigger
Let me give a topical illustration. On Wednesday evening I went along to a meeting at the Law School on “Making Environmental Law Work in the Real World” (part of the Brodies’ environmental law lecture series – in fact the 49th session in that series). The three speakers were Dr Helen Zeally, who has had a distinguished career in public health and environmental work and is currently a Board Member of the Scottish Environmental Protection Agency (SEPA); Fraser Lovell, an extremely well-informed lawyer for SEPA; and Frances McCartney, an impressive young woman who has set up a Scottish Environmental Law Centre to try to provide legal help to individuals and community groups who have concerns about the environment and who currently can find it difficult or impossible to get proper legal advice or take effective legal action. The three talks were excellent, there was a good audience and there was a good discussion afterwards – all under the benign chairmanship of Chris Himsworth. Was the discussion about the old private law rules on the escape of dangerous substances, on liability for bursting dams, on nova opera, on Rylands v Fletcher or Kerr v The Earl of Orkney? Was it about whether the old private law rules gave rise to a presumption of culpa or to strict liability? Was it about any of these things which once excited me for a whole summer when I was a young lecturer? It was not. Of course it was not. Making environmental law work in the real world is about science, attitude-changing, permits, inspections, prevention, regulation, communication, warnings, enforcement, public law incentives and penalties, administrative and legal processes, and better opportunities for input from citizens and communities. There was much talk of better regulation which, it was stressed, did not mean lighter regulation. There was a recognition that in some areas a global response is needed. Does all of this mean that the private law on non-contractual liability for damage caused to another is totally irrelevant in this area? No, it does not. It just has to be kept in perspective. For the DCFR's (actually quite interesting) rules see VI.-3:206 (Accountability for damage caused by dangerous substances or emissions) read with VI.-2:209 (Burdens incurred by the State upon environmental impairment).
In the better academic circles it is generally considered sound practice to read a book before commenting on it. So I must stress that the above is a comment on some words in advertising material which may not even have been penned by the editors. The book remains to be read. It is advertised as due for publication in November 2009.