Schiek, Dagmar --- "Comparative Law and European Harmonisation – a Match Made in Heaven or Uneasy Bedfellows?" [2012] ELECD 366; in Andenas, Mads; Andersen, Baasch Camilla (eds), "Theory and Practice of Harmonisation" (Edward Elgar Publishing, 2012)

Book Title: Theory and Practice of Harmonisation

Editor(s): Andenas, Mads; Andersen, Baasch Camilla

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849800013

Section: Chapter 22

Section Title: Comparative Law and European Harmonisation – a Match Made in Heaven or Uneasy Bedfellows?

Author(s): Schiek, Dagmar

Number of pages: 25

Extract:

22. Comparative law and European
harmonisation ­ a match made in
heaven or uneasy bedfellows?
Dagmar Schiek*

INTRODUCTION
The title of this chapter maintains a contradictory relationship between
comparative law and European harmonisation theories. On the one hand,
conventional approaches to comparative law are said to have been revived by
common core studies, based on their tendency for universalism (Örücü 2007:
51). Traditional comparative law and European harmonisation thus seem a
match made in heaven. On the other hand, approaches to comparative law
which stress diversity of socio-legal and cultural contexts of legal institutions
may well be sceptical of any mission to use comparative law for finding a best
(and possibly uniform) European way to any issue (Nelken 2007:1, 31). Such
critical branches of comparative law and European harmonisation may thus
appear as uneasy bedfellows.
The question behind this is what, if anything, critical comparative law may be
able to contribute to a theory of European legal harmonisation. Working towards
such a theory, it is worthwhile to consider theoretical approaches to law, among
which critical comparative law may have a claim to belong.
In relation to comparative law, this chapter does not make any suggestion
that this approach to law is sufficient to form a theory of harmonisation. Under
Articles 114-115 TFEU, harmonisation (referred to as `approximation of laws')
is pursued in order to achieve specific goals, mainly to ensure the functioning
of the internal market as defined in Article 26 TFEU. Harmonisation is thus
inextricably linked ...