A plea for rigorous conceptual analysis as central method in transnational law design

R. Rijgersberg, H. van der Kaaij

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Although shared problems are generally easily identified in transnational law design, it is considerably more difficult to design frameworks that transcend the peculiarities of local law in a univocal fashion. The following exposition is a plea for giving more prominence to rigorous conceptual analysis in devising such frameworks. It does this by taking the formation of contracts in the model rules of the Draft Common Frame of Reference (DCFR) as a case in point. A conceptual analysis of the basic legal notion 'juridical act' in its model rules for contract law shows that the DCFR allows for two mutually conflicting interpretations of contract formation that are by no means fictional. A rigorous conceptual analysis of basic legal notions in the formative stages of transnational law design would have prevented a conflation of two different legal traditions resulting in an ambiguous legal framework. As such it is an indispensible method for achieving a univocal interpretation of the legal end product.
Original languageEnglish
Pages (from-to)48-60
Number of pages12
JournalRecht en Methode in Onderzoek en Onderwijs
Issue number1
Publication statusPublished - 1 Jan 2013

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