Title

Desperately Seeking Subsidiarity: Danish Private Law in the Scandinavian, European and Global Context

Document Type

Article

Publication Date

2009

Subject Category

Comparative Law

Abstract

Professor Lookofsky delivered the Sixth Annual Herbert L. Bernstein Memorial Lecture in Comparative Law in 2007 and this article is based on his remarks. The article is included in the inaugural volume of CICLOPs that collects the first six Bernstein lectures. As the European Union draws closer together as a single legal community, the states that comprise the EU and their various local subdivisions struggle to come to terms with the unification and universalization of EU laws across borders. To slow down, or in some cases halt, the spread of EU law across borders, a system similar to American federalism, known as subsidiarity, has developed. Subsidiarity gives member states of the EU the ability to resist certain initiatives that would significantly go against the grain of cultural and legal currents at the local level. While all members of the European Union benefit from subsidiarity, countries such as Denmark have a special need for such a system. Denmark, unlike many of the states on the continent, never received the Roman civil code system of law, which has by and large formed the foundation of the EU’s legal culture. The imposition of civil code practices, particularly in the area of private law, on EU member states has caused great consternation amongst states like Denmark, as they struggle not only with different laws but also with an entirely different form of legal thought. Subsidiarity may be the answer to alleviating these growing pains.