At the beginning of the year, the Draft Common Frame of Reference (DCFR) was published. The text is the result of the work of a broad range of private law scholars from the Member States of the European Union, and it presents itself as an ‘academic’ document, committed to the precepts of scholarship rather than politics. Notwithstanding its unwieldy name, the text is nothing less than the draft of the central components of a European Civil Code. The following article aims (...) to inform the reader about this potentially important document and to initiate further academic debate about it. Following an overview of the genesis and content of the DCFR (Part 1), the discussion focuses on whether, and to what extent, it is based upon consistent and convincing core aims and values (Part 2). The article then proceeds to address, more specifically, the significance of private autonomy, and it examines the extent to which the proposed rules satisfy the requirements of legal certainty and legal clarity (Part 3). Thereafter, the DCFR is measured against the criteria of internal consistency and systematic integrity (Part 4). Also (Part 5) the question is asked whether the Draft critically reflects and convincingly integrates the sources on which it is based (that is the Lando Commission's Principles of European Contract Law and the Acquis Principles, as well as the private law traditions of the Member States). Also deserving of attention is the inclusion of more than 120 definitions of central concepts of private law, which are not to be found in this form or level of detail in either the Lando Principles or the national private laws (Part 6). (shrink)

Critical legal scholarship has so far been concerned primarily with trashing or deconstructing the belief clusters of "liberalism". Negative posturing of this kind is not the only feature of the movement, though. Roberto Unger has dreamt up a sociopolitical vision that presents an "empowered democracy". An important element of his "empowered democracy" is a new system of rights. Part 1 of my essay contains an analysis of the notion of a subjective right. I argue that both Hohfeld's fundamental legal conceptions (...) and Unger's various rights can be described by a simple deontic relation that I define as RIGHT. I then discuss a set of normative criteria that can help us evaluate systems of rights. Part 2 [to appear in the following issue -- ed.] contains a detailed critique of Unger's system of rights based on these normative criteria. The tenet of this part is that Unger's system of rights is contradictory, opaque, impracticable, costly, and not fully backed by what Unger offers as a background justification for it. (shrink)