Olivier Campenon: “Brexit: an opportunity for continental civil law”

Paris, 13 may 2019

 

REPORT – As far as the President of the Lefebvre Sarrut group’s Board of Directors is concerned, Brexit could lead to the decline in common law as one of several legal systems adopted by the European Union member states.

 

There is more to Brexit then just legal complications, conflicting rules and competing standards between Great Britain and the European Union; indeed, it is also an historic opportunity to clarify and unify the European legal system based on continental civil law – an opportunity that member states and economic players must come together to embrace. Great Britain will not be leaving the European Union alone come 31^st October, assuming, that is, that the date is not postponed once again ; it will, in fact, be taking with it its most powerful ally, common law – the legal system that it has unceasingly exported all over the world and that has become a major strategic weapon. After all, “Britain rules the waves, and common law rules the world”.

This ‘common law’ stems from the unwritten English law that has developed since the 12^th century and is the “law as determined by judges”, whereby the primary source of law is case law, as opposed to the civil or codified law enforced across the European continent. Member states, which have long been faced with two often competing, sometimes irreconcilable legal systems, could therefore find themselves turning to continental civil law, which is by far the more widely used system, in order to shape the new standards of the European Union by late 2019. Ireland and Malta are the only European states other than the United Kingdom to use common law.

 

Standardisation within reach

A European business code could, of course, be introduced to replace the primacy of the European judge when it comes to regulating economic relationships within the Union, and the decline in common law would seem to herald a largely clear horizon on which to more broadly standardise civil law across all member states. This being the case, it is possible that continental civil law might, one day, become a key factor in shaping the future identity of Europe. We would, of course, find that family law, economic law, contract law and inheritance law all have the same roots, follow the same logic and use the same legal instruments and could therefore eventually converge towards a series of European rules applicable to all citizens and companies within the Union.

Standardisation is, of course, within reach, and whilst this is a revolution in itself, this alone is not enough. European continental civil law must also be exported right around the world if it is to become a permanent feature on the European landscape.  Legal systems no longer have the option of remaining confined within their natural boundaries; if they are not exported, they will inevitably start to suffer.  With this in mind, continental civil law is also scoring points in China, to which it has exported the official deed. China, now the world’s leading economic power, is also a civil law country, and European civil law can and must become what ‘common law’ already is, namely a diplomatic and strategic weapon borne by public authorities and private operators all over the world. All legal systems have their vehicles. Her Majesty’s ships, for example, transported common law to the four corners of the world, Napoleon’s armies imposed his Civil Code right across Europe, and the digital sphere is now the new means of transport for law.

With the development of artificial intelligence comes the potential for an algorithm-based justice system that draws on huge databases to help with making decisions, drafting contracts and arbitration. The issue here is clearly the data, since if it stems primarily from common law countries, the legal system will naturally follow the data and civil law will eventually die out.  This being the case, it is important that the European Union be given the digital tools to allow it to promote its future legal system as a matter of urgency. The stakes here are extremely high and this is vital to the proper economic development of the European Union in a global context. What matters now is that we develop an e-justice system that connects all of the players in the legal sector in order for it to run more smoothly and allow innovation to truly flourish in this field.

As was the case with Airbus, for example, Europe could combine the political will of member states with the expertise of economic players already operating in the market. Legal publishers on the European continent are prepared to face this challenge that would allow them, in future, to offer the most comprehensive databases in the world not only within the Union itself but more importantly beyond. It is up to the states themselves to step up to the plate.

 

The report published in Le Figaro Vox can be consulted here: http://www.lefigaro.fr/vox/monde/olivier-campenon-le-brexit-une-chance-pour-le-droit-civil-continental-20190512. It is also available in the paper edition of 13 May 2019.