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Afanasyeva Taisiya A. aspirant kafedry grazhdanskogo i trudovogo prava
Peoples Friendship University of Russia
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Harmonization of private law in the European Union presents complicated challenges for its Member-states. Legal systems that are based on precedent face the necessity to change the approach towards their legal system. However, harmonization and systematization took place in countries with common law or with elements of common law before. The aim of this paper is to research prerequisites, causes and experience of systematization in England and Scotland. Issues of systematization, causes and experience of systematization in England and Scotland were studied by Van Caenegem, Walker, Marshall, Paisey C. & Paisey N.J., Roger. Also, these issues were addressed by distinguished Scottish legal researchers: Bankton, Erskine, Miller, Kames, Graham, Hutton, Kerly, McMillan, Murdoch. In course of research, general scientific (dialectic, logic) and specific scientific research methods (legalistic, prognostic, historic ect.) were used. Systematic and comparative method should be highlighted as main for the analysis. Area of research is comparative law. Systematization in England and Scotland was a very complex process in the course of which more or less successful outcomes were observed. Historic prerequisites, accomplishments and failures of systematization in England and Scotland provide an opportunity to use the example of this systematization attempts. Historical development proves that systematization and common law systems should not be incompatible. Harmonization of private law may not necessarily be an unwilling threat. English law, as evident from history, should not stay unchanged under the influence of harmonization throughout Europe. Scottish law could also strengthen ties with other legal systems which were partially lost over time. The research is focused on one aspect of the harmonization in the European Union - experience of systematization in countries with common law systems. Further research could be focused at achievements in harmonization and systematization of other Member-states. Also it is worth noticing that in the paper sufficient attention was not dedicated to the political and cultural aspects playing important role in the process of harmonization and systematization. Researchers of European law, especially its harmonization issues, as well as legal scholars studying matters of systematization in countries with common law systems could use the example of England and Scotland provided in this paper. Issues of harmonization and systematization in the European Union are currently important, since European law has strong influence on national legal systems. Consequently, common law systems and systems with elements of common law constantly are transforming. That fact should be studied with reference to the history
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Reference list:
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McCowan v Wright 1852 15 D. 229; 25 Sc. Jur. 164, 2 Stuart 120
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Van Caenegem, R.C. The Birth of the English Common Law (2nd ed.). Cambridge: Cambridge University Press, 1988
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systematization, harmonization, mixed legal system, English law, Scottish right.