Harmonisation of law

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Harmonisation of law (or "harmonization") comes from the root word harmonise which under the OED means “make or form a pleasing or consistent whole”. In the case of harmonisation of law, the aim is to make a consistent whole of law. It is an important concept in the European Union for creating common standards across the internal market.

The legal definition of harmonisation is:

  1. Cooperation between governments to make laws more uniform and coherent
  2. A policy of the European Community to achieve uniformity in laws of member states to facilitate free trade and protect citizens. [1]

Harmonisation is a process of ascertaining the admitted limits of international unification but does not necessarily amount to a vision of total uniformity. [2]

Contents

[edit] Characteristics of harmonisation

Harmonisation is usually not comprehensive but is relatively partial. That is, harmonisation of law doesn’t seek to create a sole authority of law on a particular subject. This is because measures to harmonise law cannot go further than that which is necessary.[3]

Harmonisation is unsystematic. The Directives of the European Union do not focus on or contain comprehensive regulation of the entire law. The Directives regulate some very specific issues and they regulate them only for particular situations or circumstances and only for particular types of parties. This is most prevalent in European Union contract law. [4]

Harmonisation generally takes place on two levels of governance, the overarching body and the each of the members individually. Taking the European Union, the two levels are the European level and national level. Although both European and national legislators share the legislative responsibilities, neither of these bodies has final responsibility for the whole. Also, there is no superior political authority which has the final say on who is responsible for what, ie no overarching authority over the European and national legislators. The European Court of Justice may however determine the extent of harmonisation when determining cases. [5]

Harmonisation is dynamic and this is its most appealing feature. The instruments of harmonization aim at change, in particular improving and establishing consistent conditions for the operation of legal principles.[6]

[edit] Harmonisation versus unification

“Unlike unification which contemplates the substitution of two or more legal systems with one single system, harmonisation of law arises exclusively in comparative law literature, and especially in conjunction with interjurisdictional, private transactions. Harmonisation seeks to ‘effect an approximation or co-ordination of different legal provision or systems by eliminating major differences and creating minimum requirements or standards’[7]”[8]

Unification focuses upon substituting or combining two or more legal systems and replacing them with a single system. Harmonisation on the other hand seeks to co-ordinate different legal systems by “eliminating major differences and creating minimum requirements or standards”.

Harmonisation can be seen as a step towards unification and, in a way, harmonization aims or strives towards unification.

[edit] Efforts to achieve harmonisation

The best example of harmonisation in modern history is the formation of the European Union. That said, harmonization is not a new concept. However, the problem is that no harmonisation project has ever reached completion. That is due to the nature of harmonisation, it is designed to incorporate different legal systems under a basic framework.

This is the appeal of harmonisation, it takes into account the local factors yet applies general principles to make a consistent framework of law. It generally incorporates local factors under a relatively unified framework.[9] An example of harmonisation can be drawn from the European Union and the use of Directives.

Directives require transposition into the domestic legal system of the Member State in order to become effective. If a Member State fails to transpose the Directive in a timely manner or fails to do it at all, the Directive will take ‘direct effect’, that is, individuals are able to derive rights from that Directive directly despite not being transposed into domestic law.[10] A Directive could be transposed through enactment under legislation from the national parliament or through agreement by reference.[11] The Directives are flexible to the extent that the national authorities of the Member States have the choice of the form and method of the implementation of the Directive. This takes into account the fact that Member States have differing legal systems.[12]Hence this allows the establishment of a harmonised framework of laws whilst preserving the established national laws of each member. This is the major appeal of harmonisation over unification.

Harmonisation can be achieved in two ways, actively or passively. The most common is the active pursuit of harmonisation usually through the enactment of legislation which incorporates the harmonised principles into the local law. Passive harmonisation may occur through non-legislative agreements or a convergence of case law. So far, passive harmonisation is the least successful since the non-legislative agreements tend to be voluntary. The convergence of case law is more promising since:

“All that matters is that the courts of different European States achieve similar results in the same cases, regardless of which norms, doctrines or procedures they apply in order to reach this end.”[13]

[edit] Harmonisation and convergence of law

Harmonisation is synonymous with convergence of the law however harmonisation is usually associated via active pursuit through enacting legislation whereas convergence is generally associated with a passive approach such as a natural convergence of law through custom and frequent use of harmonised principles.

The most prominent example of harmonisation in international law is UNCITRAL (United Nations Commission on International Trade Law).

[edit] See also

[edit] Notes

  1. ^ Peter E Nygh, Peter Butt (ed). (1997). ‘’Butterworth Australian LEGAL Dictionary’’. page 543
  2. ^ Menski, W. (2005). ‘’Comparative Law in a Global Context’’. London: Cambridge University Press. page 39
  3. ^ Hesselink, M. The Ideal of Codification and the Dynamics of Europeanisation: The Dutch Experience in the book by Vogenauer, S and Weatherill, S (ed). (2006). ‘’The Harmonisation of European Contract Law Implications for European Private Laws, Business and Legal Practice’’. Oxford and Portland, Oregon: Hart Publishing. Page 49
  4. ^ Hesselink, M. The Ideal of Codification and the Dynamics of Europeanisation: The Dutch Experience in the book by Vogenauer, S and Weatherill, S (ed). (2006). ‘’The Harmonisation of European Contract Law Implications for European Private Laws, Business and Legal Practice’’. Oxford and Portland, Oregon: Hart Publishing. Page 50
  5. ^ Hesselink, M. The Ideal of Codification and the Dynamics of Europeanisation: The Dutch Experience in the book by Vogenauer, S and Weatherill, S (ed). (2006). ‘’The Harmonisation of European Contract Law Implications for European Private Laws, Business and Legal Practice’’. Oxford and Portland, Oregon: Hart Publishing. Page 50
  6. ^ Hesselink, M. The Ideal of Codification and the Dynamics of Europeanisation: The Dutch Experience in the book by Vogenauer, S and Weatherill, S (ed). (2006). ‘’The Harmonisation of European Contract Law Implications for European Private Laws, Business and Legal Practice’’. Oxford and Portland, Oregon: Hart Publishing. Page 50
  7. ^ Kamba (1974) 23 ICLQ 485, 501
  8. ^ de Cruz, P. (1999). ‘’Comparative Law in a Changing World’’. London: Cavendish Publishing.
  9. ^ Hesselink, M. The Ideal of Codification and the Dynamics of Europeanisation: The Dutch Experience in the book by Vogenauer, S and Weatherill, S (ed). (2006). ‘’The Harmonisation of European Contract Law Implications for European Private Laws, Business and Legal Practice’’. Oxford and Portland, Oregon: Hart Publishing. Page 48
  10. ^ ‘’Francovich an Others’’ [1991] ECR I-5357
  11. ^ Ginsburg, T and Cooter RD. “Leximetrics: Why the Same Laws are Longer in Some Countries than Others” (http://law.bepress.com/cgi/viewcontent.cgi?article=1080&context=alea), ‘’American Law & Economics Association Annual Meetings 2004, Paper 64’’. 2004.
  12. ^ Craig P and de Búrca, G. (3rd edn). ‘’EU Law: Text, Cases and Materials’’. Oxford University Press. Page 203. in the book by Vogenauer, S and Weatherill, S (ed). (2006). ‘’The Harmonisation of European Contract Law Implications for European Private Laws, Business and Legal Practice’’. Oxford and Portland, Oregon: Hart Publishing. Page 115
  13. ^ Colombi Ciacchi, A. “Non-Legislative Harmonisation of Private Law under the European Constitution: The Case of Unfair Suretyships”, (2005). 13 ‘’European Review of Private Law’’ page 285 in the book by Vogenauer, S and Weatherill, S (ed). (2006). ‘’The Harmonisation of European Contract Law Implications for European Private Laws, Business and Legal Practice’’. Oxford and Portland, Oregon: Hart Publishing. Page 198

[edit] External links