Newly published book by mr. Roel Westrik: Hidden Civil Law

Nieuw verschenen publicatie van mr Roel Westrik: Verborgen

The book Hidden Civil Law explains that there is a question of a ‘knowing’ problem: “How can the applicable law be found, in order for it to be acknowledged and recognised?” Through the formulation of fifteen ‘knowing’ questions, the reader is shown how law of European origin – together with traditional ‘national law’ – forms applicable law.'

Law from a European source must be viewed as a nation’s own law; more importantly, it should be both studied and, in particular, applied as such. However, to date, it is still considered law that emanates from an ‘external’ entity.

It is referred to as ‘European law’, that is as a corpus alienum which has infiltrated into the national legal system. At the same time, it is the national legal system that retains primary authority in respect of legal considerations.

Yet nothing is further from the truth. Not only does the application of law of European origin take precedence over law of national origin, law of European origin actively rewrites that national law from inside out and has, in part, already rewritten it. Until such time as that is acknowledged or recognised in both legal teaching and practice, the truly applicable civil law will remain hidden.

The book Hidden Civil Law explains that there is a question of a ‘knowing’ problem: “How can the applicable law be found, in order for it to be acknowledged and recognised?” Through the formulation of fifteen ‘knowing’ questions, the reader is shown how law of European origin – and not traditional ‘national law’ – forms applicable law.

Account must be taken of this new reality; one that is already amidst us and confronting us. As, currently, there is a genuine risk that legal issues solved and judged in accordance with national law might be unable to withstand an eventual assessment in the light of the truly applicable law. Accordingly, ‘justice’ will not be done.

The book can be ordered via the website of Uitgeverij Paris and is also available in the Dutch language under the title Verborgen privaatrecht.

CV

Click here for the curriculum vitae of mr. Roel Westrik.

More information

Hidden Civil Law

How can you know what the applicable law is?
ISBN: 9789462511101
Civil Law
Author: mr. R. Westrik
Number of pages: 122
 

Content

Lawyers are taught to work with applicable law and to be familiar with the applicable law, they should ‘keep up to date with their literature’. Here, in two sentences, the reality and ways of working of lawyers throughout the past century. Past because, in contemporary times, applicable law can no longer be easily ‘recognised’. There is a knowing problem related to applicable law of European origin. This problem consists in two main questions: How are lawyers to know what applicable law is? And, if there is a presumption of ‘other’ applicable law when practising ‘national law’, where is it to be found?

These questions must be posed in every case, every advice to be written as well as judgments and rulings that have to be pronounced. What, in a specific case, is the prevailing, applicable law irrespective of whether its origins are national or European?

The acknowledgement that these questions must be posed in advance, before ‘solving’ any case, will make great strides in the current ways of working and classification of legal areas. Also, it will pay scant attention to the existing approach where ‘European law’ is seen ascorpus alienum, which influences national law from ‘outside’ and creates a ‘Hidden Civil Law’.

A message is sent to the legal world of civil law: Wake up! European law is part of national law and should be studied as applicable law. It should be recognised and implemented rather than being taken as a separate supplement under the flag of ‘IPL, European law or its impact’. It is applicable civil law!


On the author

Roel Westrik is Associate Professor in Civil Law at Erasmus School of Law (ESL), Erasmus University Rotterdam and also working as Head Research Office at a law firm (Holla Advocaten, Den Bosch, Eindhoven).


Index

Preface and justification
1 Introduction: a knowing problem
2 Nature of the knowing problem
3 The ‘applicable law’ paradoxes
4 The outmoded dichotomy
5 Hidden applicable law
5.1 Applicable law: where can it be found in (national) legislation and literature?
5.2 Applicable law: where can in it be found in the legislation of European origin?
5.3 Do EU Directives have a direct or an indirect impact?
5.4 Is there any applicable primary law of European origin ‘at the base’ of my case?
5.5 How should a lawyer ‘anticipate’ the standards set by the ECJ?
5.6 What takes priority: the text of a directive or the rationale of that directive? A narrow or a broad explanation? One of each?
5.7 Who has the last word: the ECJ or the national court? Is the ECJ going to take the place of the national courts?
5.8 Is there a ‘step-by-step plan’ to find the applicable law?
5.9 May a Member State’s ‘own legislation’ be stricter?
5.10 Is there a system in the legal practice of the ECJ, or is it simply law of precedent?
5.11 How can we know whether the language read by lawyers ‘says what it says’?
5.12 Is a cross-border aspect necessary for the applicability of ‘European law’?
5.13 Do territorial and/or substantive borders still exist for the implementation of applicable law from a European source?
5.14 Do we know whether the legal terms are correct?
5.15 When is the existing legal system not, or no longer, apparently correct?
6 The ‘knowing problem’: conclusion
7 Where to go from here?
Index of Jurisprudence
 

Questions

Questions can be directed to Barry Mulder via communicatie@law.eur.nl or +31 (0)10 - 408 97 58