within the perspective of a European
MAURO BUSSANI AND VERNON VALENTINE PALMER
One may wonder how this study and its results might be of possible use to the would-be codifiers of a European Code of the Law of Torts.
The comparative method on which we relied has probably unearthed many common features that were hitherto obscure in traditional legal analysis. It may also be true that our research lends itself as a valuable instrument for future legal harmonization, in the sense that it has hopefully provided reliable data for use in devising transnational solutions that may prove workable in practice.
Nevertheless, any codification attempt should be seasoned with – and this applies not simply to tort law but to all subjects – a certain amount of constructive scepticism. Leaving aside any positive or negative bias vis-à-vis the very idea of the code, as well as the many reasons put forward to deny, support or simply postpone its feasibility,1 the point is
1 On the overall aspects of the debate, see the contributions to the symposium ‘Towards a European Civil Code’ held in The Hague on 28 February 1997, (1997) 5 European Review of Private Law. A. P. Legrand, ‘Sens et non-sens d’un code civil européen’, (1996) 48 RIDC 779, 800; A. P. Legrand, ‘Against a European Civil Code’, (1997) 60 Modern Law Review 44, strongly argues in favour of legal pluralism, which provides a wealth of solutions and techniques to ensure flexibility. See also G. Alpa, ‘The European Civil Code: “E Pluribus Unum”’, (1999) 14 Tulane European and Civil Law Forum 1; H. Collins, ‘European Private Law and Cultural Identity of States’, (1995) 3 European Review of Private Law 353; B. S. Markesinis, ‘Why a Code is not the Best Way to Advance the Cause of European Legal Unity’, (1997) 5 European Review of Private Law 519; V. Zeno-Zencovich, ‘The “European Civil Code”. European Legal Traditions and Neo-Positivism’, (1998) 6 European Review of Private Law; H. Kötz, ‘Comparative Legal Research: Its Function in the Development of Harmonised Law. The European Perspective’, in Juridiska Fakulteten I Uppsala (ed.), Towards Universal Laws – Trends in National, European and International Law-making (Iustus Forlag, Uppsala, 1995); T. Weir, ‘Divergent Legal Systems in a Single Member States’, (1998) 6ZEuP 564. For a more general perspective see R. Sacco, ‘La codification, forme