A Common Law Fortress Under Attack: Is English Law Being Europeanized?

2 Colum. J. Eur. L. 1 (1995)

Xavier Lewis. Barrister, of the Middle Temple. Member of the Legal Service, European Commission, former Legal Secretary, Court of Justice of the European Communities.

In an article about civilian codification in North America, Professor Shael Herman amusingly likened the Québec and Louisiana jurisdictions to a “civilian fortress” which had bravely withstood Anglo-Saxon onslaughts. The question now is whether the besiegers are being besieged: whether the English and Irish common law is becoming “Europeanized” as a result of British and Irish membership of the European Community.

It could not be doubted that with the accession of the United Kingdom and Ireland to the European Economic Community on January 1, 1973, the common law would undergo a number of important changes. At that time, the European Economic Community, now referred to as the European Community following the modifications to the Treaty Establishing the European Economic Community made by the Treaty on European Union, had already been in existence for fifteen years. The legal structure of the European Community was already viable and complex. Until the United Kingdom and Ireland joined in 1973, none of the legal systems of the Member States were common law jurisdictions and the scheme of Community law bore the imprint of the continental legal tradition. It has been stated only recently that: “[O]ne of the\most intractable problems of European legal integration is the reconciliation of the civil law and the common law families.” This statement would seem to imply that there is a degree of antagonism between the continental civil law and English and Irish common law traditions.