Restatements

From Max-EuP 2012

by Ralf Michaels

1. Term

A restatement restates, at least in principle, what already exists. A restatement is not a law and is not typically promulgated by the legislature. Rather, restatements emerge when scholars and practitioners systematize the applicable law in a new, more accessible form, concentrating on the most important principles. Restatements can therefore be distinguished from other texts, although the distinctions are sometimes blurred. The main difference from a codification is that a restatement lacks the force of law. Otherwise, the structure and content of a restatement look similar to a codification, and in reality most codifications are in the large part restatements of existing law rather than the creation of new law. A restatement can thus be called a ‘private codification’. Compared to principles of law, the rules of a restatement are normally more detailed so that they can be applied as rules. Many texts, although labelled principles, more closely resemble restatements, since they are in rule form. Finally, restatements differ from model laws in that they reproduce the law as it is, while model laws suggest how the law should be; however, an overlap exists here as well.

In a broader sense, the legal encyclopaedias of natural law and of the Enlightenment were restatements, as was the systematic representation of national law in the Pandektensystem and in French private law of the 18th and 19th centuries. All these scholarly works did not merely list the totality of the law; rather, they represented law as a system. In a narrower sense, the term restatement refers to the so-called Restatements of the Law of the American Law Institute (ALI), as well as to later projects influenced by these restatements. This entry examines only restatements in this narrower sense.

2. The US restatements of the law

At the beginning of the 20th century, law in the United States was uncertain and exceedingly complex. Lack of agreement on the fundamental principles of the common law, lack of precision in the use of legal terms, conflicting and badly drawn-up statutory provisions, the great volume of recorded decisions, and the number and nature of novel legal questions all contributed to a lack of legal certainty. The two main reasons for the complexity were the lack of a systematic development of the law and the variations among the laws of the different states. To address these problems, the ALI was founded in 1923 ‘to promote the clarification and simplification of the law and its better adaptation to social needs, to secure the better administration of justice, and to encourage and carry on scholarly and scientific legal work’. The principal instrument for achieving this was to produce a restatement of the most basic legal subjects to make the valid law accessible. The most promising method was considered to be the scientific systematization of legal rules that had been discerned from the case material. From their very inception, the first generation of restatements were regularly criticized as overly formalistic and conservative because they accorded with the European-influenced formalism of the 19th century. Some recent assessments have been less negative.

Compiling restatements takes many years and is marked by intensive, continuous exchange between scholars and practitioners. The ALI first determines, after careful preliminary study, whether a topic is suitable. Then, the ALI appoints a reporter, usually a scholar, who prepares an initial draft with a group of assistant reporters. This draft is then discussed with a small group of advisers, comprising practitioners and scholars, and is then revised. This revised draft is discussed by the ALI Council, a group of about 60 prominent judges, attorneys and professors. After that discussion, the revised draft is either referred to the reporter for further consideration or is presented as a tentative draft at the ALI Annual Meeting, at which more than 4,000 members are present. This assembly discusses the provisional draft and either accepts it as it is or, more frequently, asks the reporter to make further changes. Eventually, the final and approved text is published by the ALI.

The character of the restatements has changed significantly over time. The First Restatement appeared between 1932 and 1944 in the fields of common law which, in the European view, largely belong to private law: agency, contracts, torts, restitution, property, trusts, securities, conflict of laws and judgments. These first-generation restatements were mostly made up of rules with short explanations. They conveyed an impression of unity and clarity, an impression which was quickly criticized as not reflecting reality. The Second Restatement, published from 1952, which examined the subsequent development of the law, took on board the criticism of the First Restatement and also included new areas of law, such as those relating to landlords and tenants and foreign relations. Many of its rules are more openly formulated and are less focused on uniformity. Often they are consciously in conflict with each other. With the Second Restatement, the rules became less important, as the importance of the commentaries and evidence of the law in force increased. The published restatements also addressed the question of how far the rules of individual states depart from the solutions of the restatement. Work on a Third Restatement has been underway since 1977 with new, non-private law fields being included, eg international arbitration and international trade law.

The new form, with both rules and detailed commentaries, makes it possible for reporters openly to suggest solutions which do not necessarily reflect the valid law in the majority of states. Sometimes these suggestions are accepted because of the authority of the restatements or the reporter. Newer restatements, such as Agency (2006), also incorporate worldwide legal comparison and thereby go beyond the original idea of a simple reformulation of domestic law. Even though the restatements are unofficial in character, they play an important role in the practice of the courts as a reference text. However, great differences exist, both between individual restatements and as regards their implementation in different states.

Europeans sometimes think the main function of the US restatements is to overcome the differences between state laws and thus to promote a US-wide legal uniformity. As we have seen, however, the differences in state laws are only one of the problems addressed by the restatements, and in newer restatements it is clear that no attempt is being made to claim US-wide legal unification where it does not exist. US-wide legal unification is being pursued in other ways. Thus, the National Conference of Commissioners on Uniform State Laws (NCCUSL) works, as does the ALI, on model laws. The most successful of these, the Uniform Commercial Code (UCC), has been implemented in almost all states, admittedly with differences in detail. Case law has also achieved partial unification. Whereas the federal courts are very limited in their ability to rely on and create a federal common law, state courts, when interpreting the law of their individual states, regularly refer to the decisions of courts of other states as persuasive precedent.

3. European Restatements

The idea behind the restatements has found favour in Europe, especially in contract law. In 1968, the General Secretary of UNIDROIT, Mario Matteucci, encouraged the formulation of a ‘Restatement of International Contract Law’. First conducted as a ‘progressive codification of the law of international trade’, the project resulted in the 1994 UNIDROIT Principles of International Commercial Contracts (PICC). The Principles of European Contract Law (PECL), a parallel project, appeared in 1995. Even though both works are called ‘Principles’, they were explicitly inspired by the idea of the restatements and are similar in form, containing rules, short commentaries and (as far as the European Principles are concerned) comparative law references. From the beginning, both projects emphasized the desire to establish the best rules more than did their US model. There were also differences in the preparation method. Instead of one individual reporter, the Principles relied on different reporters for individual areas and the final project did not undergo an intensive discussion with non-members of the working group or practitioners before publication (as did the US Restatements).

The success of these restatements has led to other restatement projects. As its name suggests, the Restatement of European Insurance Contract Law (2007) showed similarities. However, it has since been published as ‘Principles’ (2009) (Principles of European Insurance Contract Law (PEICL)). From the beginning, this project was seen as preparatory work for legislative harmonization and for use in the Common Frame of Reference (CFR). It relies not only on the laws of the Member States but also on existing EU insurance law. Another restatement is the Restatement of Labour Law in Europe that is currently being prepared by the European Labour Law Network and is scheduled for completion by 2015 (European Labour Law). Other projects adopt the name ‘Principles’ but resemble restatements in structure and content; the focus is regularly on the legal systems of the Member States. Such restatements include the Principles of European Tort Law (2005) as well as the Principles of European Family Law, of which two parts have been issued: divorce and maintenance between former spouses (2004) and parental responsibilities (2007) (family). Methodologically, both projects are similar to the contract law principles, albeit with stronger reliance on questionnaires and national reports. Principles for Conflict of Laws in Intellectual Property exist in draft form and are to be published in 2012 (intellectual property). Principles have been proposed for further areas: European property law, European intellectual property law, European contractual networks and European administrative law. UNIDROIT, together with the ALI, have also published global Principles of Transnational Civil Procedure (2004). The former UNIDROIT general secretary has since suggested the formulation of Principles of Conflicts of Law.

While these projects are primarily aimed at bringing together national legal systems, the Acquis Principles actually represent a restatement of EU law. These Principles attempt to draw a general contract law from the individual regulations contained in special instruments (mainly issued with regard to consumer contracts) and, in the process, make numerous legal policy decisions, so that the result goes beyond a simple compilation of existing law. Although proposed on several occasions, a restatement of European consumer law is unlikely at this time, especially in view of the proposed Consumer Rights Directive (consumers and consumer protection law).

By contrast, the project on a Common Core of European Private Law is not, strictly speaking, a restatement. This project seeks to present the similarities and differences of European legal systems, without aiming at a systematic body of rules or evaluating the rules that are found. The draft for a Common Frame of Reference (CFR) from the Study Group on a European Civil Code is not, strictly speaking, a restatement for the opposite reason: it is too normative. The DCFR is based on the Principles of European Private Law and (less so) on the Acquis Principles, but it exceeds both of them in going significantly beyond the status quo and must therefore be seen primarily as a legislative proposal. This conclusion is supported by the fact that, in contrast to the new US restatements, comparative law studies appear to have played only a limited role in the drafting of many of its rules.

4. Comparison

Despite the similarities, many differences exist with the US restatements. A first difference concerns the point of departure. The main problem relating to the EU Member States does not lie in legal uncertainty or a lack of systematization. Continental European private law has traditionally been codified, and even English law is more systematic than American law. The main problem in Europe consists of the differences between the legal systems of the Member States, which are more fundamental than in the United States. The private law of the EU, on the other hand, is still unsystematic, but the reason for this is the fragmentary character of European law-making, which cannot simply be expanded into a system. A complete restatement would have to combine EU law and the law of the Member States and thus attempt to use very different private law concepts. To date this combination has not proven very successful.

A further difference concerns the material used, which in the United States has traditionally been case law and in Europe largely legislation. The task in the United States is first and foremost to distil general principles from judicial decisions in concrete cases; in Europe, one must frequently unify already existing abstract legal rules. The difference is not absolute: the growing importance of legislation in the United States presents new challenges to the compilers of the US restatements, while in Europe case law is being incorporated into the work, though not to anywhere near the same extent as in the United States.

The methods are also different. The US restatements appear under the authority of a generally recognized institution, the ALI. The European restatements, by contrast, are often created by privately established working groups. Even the merger of the most important working groups into the Joint Network on European Private Law has not changed this fundamentally. Whether the newly founded European Law Institute will help approximate European procedures to their American model remains to be seen. Further, the US restatements are examined and improved during years of exchange between reporters and outsiders, especially practitioners; their consent is necessary before publication can take place. In contrast, most European working groups are made up almost exclusively of academics; exchange with outsiders, especially practitioners, usually occurs, if at all, only after publication. The Draft Common Frame of Reference (DCFR) is only a partial exception. It was first issued as a preliminary draft, but the time for comments of less than one year was significantly shorter than in the case of the US restatements, and the ‘stakeholder meetings’ held during its preparation likewise did not lead to an intensive participation of practitioners. Consequently, the current draft is largely identical to the earlier draft.

The differences in method lead to different results. The US restatements do have a certain policy-driven character; reporters suggest the ‘best’ rules more often than might be appreciated by outside observers. Still, the extent of such suggestions is smaller than that found in most of the European restatements. When US restatements make policy suggestions departing from the status quo, it is clear from the commentaries. By contrast, all European restatements combine merely descriptive rules with potentially prescriptive rules, usually without revealing the difference. Overall, the European restatements, arising out of the European history of codification, are significantly more focused on systematization and coherence than the more recent generation of US restatements.

This difference is connected to differences in the objectives of the restatements. The main roles of restatements are to provide clarity to difficult questions and, through systematization, to make it easier to achieve consistency in the resolution of cases. Restatements are, in this regard, not primary but secondary sources of law. They can only assume that role, however, to the extent that they are not only normatively persuasive but also, by and large, descriptively accurate in providing an authoritative, reliable account of the existing law. Many of the US restatements have met this objective; at present, this is less so for the European restatements. One reason may be that the comprehensive commentaries of the US restatements facilitate access to the law of the individual states. By contrast, in Europe almost all restatements are more or less explicitly developed as preparatory work for a European codification that should make access to the law of the Member States irrelevant. This may make stronger policy positions appear desirable.

Forsome restatements, especially the UNIDROIT Principles and the PECL as well as more recently for the DCFR, there has been debate whether they may be selected as the applicable law—a debate that never existed with regard to the US restatements. The European legislator had for some time appeared to be sympathetic to such an idea before it was finally rejected in the Rome I Regulation (Reg 593/2008) (choice of law by the parties). In contrast, some restatements can be selected in arbitral proceedings, though in fact the UNIDROIT PICC are only rarely chosen and the other restatements almost never. The UNIDROIT PICC are occasionally used as additional authority for questions in domestic law but almost never as the applicable law.

All European restatements aspire to serve as preparatory work for possible Union law-making. It may be, however, that the inherent compromise between descriptive-comparative and prescriptive-legal policy-based contents, which characterizes more or less all these projects, will be an obstacle. The US restatements were from the beginning explicitly understood as an alternative to law-making; a unified federal private law codification is hardly ever seriously discussed and would be impossible under the US Constitution. The European Union legislature might perhaps be better served by a more strongly descriptive restatement, which would make clear whether there is need for legislative intervention. It appears doubtful that the views of scholars on legal policy will persuade the EU legislature simply because they are expressed in the form of restatements. That is particularly true for the DCFR, which on the one hand contains strong legal policy views and on the other hand explicitly says that a political reference framework must also take up other legal policy ideas.

Literature

Ralf Michaels, ‘Privatautonomie und Privatkodifikation—Zu Anwendbarkeit und Geltung allgemeiner Vertragsrechtsprinzipien’ (1998) 67 RabelsZ 580; Wolfgang Wurmnest, ‘Common Core, Grundregeln, Kodifikationsentwürfe, Acquis-Grundsätze—Ansätze internationaler Wissenschaftlergruppen zur Privatrechtsvereinheitlichung in Europa’ (2003) ZEuP 714; Richard Hyland, ‘The American Restatements and the Uniform Commercial Code’ in Arthur S Hartkamp and others (eds), Towards a European Civil Code (3d edn, 2004) 59; Michael Joachim Bonell, An International Restatement of Contract Law—The UNIDROIT Principles of International Commercial Contracts (3rd edn, 2005); Joachim Zekoll, ‘Das American Law Institute—ein Vorbild für Europa?’ in Reinhard Zimmermann (ed), Globalisierung und Entstaatlichung des Rechts, Teilband II: Nichtstaatliches Recht: Geltung und Genese (2008) 101; Lance Liebman, ‘The American Law Institute: a Model for the New Europe?’ in Fabrizio Cafaggi and Horatia Muir-Watt (eds), Making European Private Law-Governance Design (2008) 209; Klaus Peter Berger, The Creeping Codification of the Lex Mercatoria (2nd revised edn, 2010); Nils Jansen, Non-Legislative Codifications and the Making of Legal Authority (2010).

Retrieved from Restatements – Max-EuP 2012 on 05 December 2022.

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