A Ius Commune Casebook on Property Law? What’s next for European property law scholarship?

At the end of July, after more than eight years of work, the Ius Commune Casebook on Property Law  - edited by M-EPLI fellow Sjef van Erp and myself, was published. The book is a collaborative effort of a team of nine authors from England (William Swadling and Alexandra Braun, Oxford University), Belgium (Vincent Sagaert and Caroline Lebon, Catholic University of Leuven), Austria (Monika Hinteregger, Karl-Franzens-University of Graz), and the Netherlands (Michael Milo from Utrecht University and Sjef van Erp, Lars van Vliet and myself from Maastricht University). What follows are some personal observations of one of the editors, a bit of a preview of the casebook and a personal proposal on the road to take next.

When I started working on the casebook, I had just started work on my PhD thesis and was allowed to participate as audience only. At the end of the April 2004 meeting, I walked out of the meeting as an author of what would become the chapter on types of property rights, which perfectly fitted my PhD research on the principle of numerus clausus. I also became secretary to the team (task force) making the casebook, co-responsible for organising the meetings and organising the translation into English of the vast amount of materials we soon discovered. Writing such a casebook – we discovered – is a team effort and I ended up co-author of three more chapters and co-editor of the casebook.

When writing such a casebook in English, which contains materials from non-English speaking legal systems, one of the largest challenges is the translation of materials. Over the course of the years, we have tried and tested many methods of translations, varying from using students of our Maastricht European Law School Programme, professional translations, and translations by academic staff, certainly also including ourselves. Perhaps very interesting to report: there is generally no real difference in quality of any of these translations, of course depending on the amount of time and effort spend on making the translation (the work and attitude towards translation of a student is not always comparable with the author of the chapter him or herself, but on average we were surprised by the excellent quality students are able to produce). Taking care of and guarding the translations has perhaps taken the best part of these eight years we have been working on the book and we have learned a tremendous amount from it.

In many ways, the casebook represents everything about the development of the law I believe in. It is a Ius Commune Casebook for the Common Law of Europe. It is a casebook aiming to uncover similarities between legal systems in Europe. While respecting differences – and in property law there are certainly many differences – the aim of the casebook is to show, by using examples from legislation, case law and doctrine, that there are indeed common underlying values and thought patterns in many legal systems. Although this may seem very natural to many contract lawyers, offering evidence of this in respect to the law of property has hardly ever been achieved on this scale.

I would never have imagined in 2004 that finding differences between legal systems, especially between English common law and civil law systems, would be equally important to me as finding similarities. However, as the work on the book progressed, I started realising the importance of these differences. For example, the fundamental question whether there is ownership of land in the common law? Especially when they are passionately defended by representatives from these traditions (as it should be), growing a deeper understanding of each other’s legal culture, underlying policy issues and the choices that follow from these, is perhaps the most enriching the casebook has to offer. At least, we have tried to translate these debates and discoveries into the text of the casebook as well as into the selection of our cases. I really think the strength of the book lies in leaving such discoveries to the reader.

In the end, the question is of course whether there should be a common property law (ius commune) in Europe. I have been privileged to go into this question somewhat in the final chapter of the casebook, but while writing it I realised that this brings us back to the fundamental debate some of us are, but all of us should be having: what is our methodology in European private law? 

We can easily find similarities and differences when we zoom in or zoom out to the results of comparative studies – the casebook offers the reader ample room to do both. But are it not our common thought-patterns that matter most? Let me provide an example from the casebook (chapter 3). When a piece of land (a parcel) is enclosed by other parcels and the public roads or public space cannot be reached but by crossing someone else’s land, the holder of the enclosed piece of land has a problem. Regardless of the location of the parcel, i.e. the legal system in which the parcel is located (lex rei sitae), the problem is the same. The approach of the legal systems is the same – there are two policy questions to be answered: (1) how does the holder of the enclosed parcel reach the public road, (2) should the law interfere to help the holder of the enclosed parcel.

The answer to the question, however, may differ depending on how you look at the role the law should play. In English law the holder of the enclosed parcel must negotiate with his neighbours and the law therefore presumes a reasonable settlement can be reached between the parties (or the holder of the enclosed parcel uses a helicopter). In civil law systems we tend to help the holder of the enclosed parcel by either creating a right to access the public road (an emergency route) by operation of law or to create a limited property right (in the form of a right of servitude of way) by operation of law. In other words, civil law systems do not leave matters to the parties to decide, but provide a mandatory solution.

We discovered these similar approaches, but different choices in December 2005 and the question of how to solve it, so that we can provide a common rule, has been puzzling me since. On the basis of which do we decide what solution to choose? Do we take the solution that we consider best, or do we come up with a third rule that might be much better in our view? However, if we do so, what methodology do we use to make our choice? This dilemma reminds me immediately of the debate on the DCFR and the criticism on its methodology.

I am convinced there are various levels that research into a certain area of law goes through. Besides national scholarship and comparative law, questions of comparison arise at a different level, not to enrich the national solutions to certain problems, but to uncover the underlying values and thought-patters, first of the national system, then of the field of study itself. In property law we are at this point, now having identified three (or four) fundamental principles (numerus clausus, transparency (publicity and specificity if you will) and accessority). We (almost) know how these behave at the national level in the national context. We must now think about how these function in a wider context: the European Union’s internal market, or even wider: globally.

At these levels, different rules and principles apply and we can no longer simply use our national doctrine to justify the choices we make (i.e. helping or not helping the holder of the enclosed parcel). After all, another’s doctrine is equally important to our own in this context. We must, therefore go in search for a different normative framework that will help us make and – more importantly – justify our new choices.

With the casebook I hope we are bringing (European) property law scholarship at this next level. We finally have enough (if there is ever enough!) knowledge of the underlying national values and thought-patters to seriously start thinking about a common normative framework in which we can develop property law for the 21st century. I am making the search for a new or better method one of my research priorities. In the casebook I have made a start with this and suggested, in line with my other work, using EU law and the European economic constitution, especially the four freedoms, to help us along the way.v