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Smits on the Complexity of Transnational Law

By Lawrence Solum

Jan M. Smits (Tilburg University - Tilburg Institute of Comparative and Transnational Law) has posted The Complexity of Transnational Law: Coherence and Fragmentation of Private Law on SSRN. Here is the abstract:

It is generally acknowledged that legal rules increasingly flow from different (national, European and supranational) sources. It is equally well established that this multiplication of sources deeply disturbs our idea of law as a coherent and unitary system. The aim of this contribution is to explore this increasing complexity for the field of private law. One aspect of this complexity is an undeniable fragmentation of law. This paper (written as the Netherlands report for the XVIIIth International Congress of Comparative Law 2010) pays special attention to how fragmentation of private law is perceived in the Netherlands and which strategies are adopted to remedy the problems it causes. The approach of the Dutch legislature in dealing with this fragmentation is to try to re-establish a coherent system. This is apparent from both the ways in which European directives are implemented and from the Dutch efforts to deal with the increasing complexity of private international law. European directives are implemented as much as possible inside the Dutch Civil Code in order to keep the private law system intact, even though this cannot take away the causes of increasing incoherence. Also the disperse rules on private international law are structured in a new Book of the Civil Code, even though it is no longer in the power of the national legislature to create a coherent system. This strategy of the Dutch legislature is clearly wrong because it is no longer in the power of a national legislature to create a coherent system through legislation. We should therefore seek new strategies to deal with the various legal regimes that exist on a national territory. The paper explores several of these strategies.

Full post as published by Legal Theory Blog on February 05, 2010 (boomark / email).