Albanian Civil Law and the Influence of Foreign Laws
While Albanian civil law is young,1 it has had time to undergo fundamental transformations in three different time periods. Each codification of Albanian civil law from 1928 up to now has been a reflection of the country’s social and economic situation at the time. As part of these transformations, foreign laws have had, and continue to have, a considerable influence on Albanian civil law, thus begging the question of the manner and degree to which foreign law has in fact influenced Albanian law. First of all, one needs to note that this influence has differed: Albanian civil law has shifted from the civil law family tradition to socialist law, only to return again to the civil law tradition – but without completely losing the signs of socialist law.
Since 1928, Albanian civil legislation has passed through four distinct stages:
• the Civil Code of the Albanian Kingdom which was approved in 1928 and entered into force on 1 April 1929;
• Albanian civil legislation of the period between 1945 and 1981;
• the Civil Code of the Socialist People’s Republic of Albania which was approved in 1981 and entered into force on 1 January 1982; and
• the current Civil Code of the Republic of Albania, which entered into force on 1 November 1994.
This chapter will describe the historical evolution of Albania civil law and also consider the influence of foreign law in the development of its patterning and the continuing significance this has had and still has in locating Albania within the broader legal map of the world. It will be evident that the evolution of the Albanian civil legislation was not a smooth one: the repeal of one law leaving its place for another one. This was dictated by a radical and violent overthrow whereby a social system was replaced by another – based on the doctrine of the communist state, and without maintaining the prior heritage created over the years. It is important, therefore, to emphasise that the legal inheritance from the pre-war period, including the Civil Code of the Albanian Kingdom, the jurisprudence and the limited legal doctrine of the time, was regarded as ‘hostile’ and contrary to ‘communist morality’. Consequently everything from this period was considered ‘archival’ and could not be used even for research purposes. The legislation of this period was completely annulled and replaced by the ‘new legislation’ of the state of the dictatorship of the proletariat.2 The extreme actions of the communist state of the time knew no limits: in 1966, even the Ministry of Justice was abolished.3
Today Albania aspires to be part of the EU. This aspiration has been reflected, for example, in the signing of the 2006 EU-Albania Stabilisation and Association Agreement.4 In light of this state of affairs, the need to make amendments to the Civil Code has become crucial in order to respond to new economic and social developments in Albania and also to approximate Albania’s legislation to the EU’s acquis, based on Article 70(1) of the above-mentioned Stabilisation and Association Agreement which states:
[T]he Parties recognise the importance of the approximation of Albania’s existing legislation to that of the Community and of its effective implementation. Albania shall endeavor to ensure that its existing laws and future legislation shall be gradually made compatible with the Community acquis. Albania shall ensure that existing and future legislation shall be properly implemented and enforced.
Civil Code of the Albanian Kingdom and the Influence of Foreign Law
After a five-century period under the Ottoman Empire, during which the Islamic traditions of Sharia and Mexhele5 constituted the basic law in the country, and after the long conflicts before and following the first World War, the Albanian state, which was created on 28 November 1912, began, for the first time, to regulate private-law relations through a Civil Code that was quite advanced for the time. The Civil Code of the Albanian Kingdom of 1928 entered into force on 1 April 1929,6 at the start of the consolidation of the Albanian state.7 This code was considered to be a ‘great achievement’ because of its values and importance that marked the beginning of the development of capitalist relations in Albania.8
The 1928 Civil Code – sometimes called the Civil Code of Zog9 (hereinafter referred to as the ZCC), was influenced by the French model (Civil Code of Napoleon). It constituted a novelty in the circumstances of the Albanian state and society of the time. Foreign laws10 – not only French and Italian (primarily) but also German and Swiss laws, to some extent, inspired Albanian legislation to provide for the equality of all citizens, the emancipation of land ownership, and the freedom to engage in economic activities. The acceptance of foreign law in the ZCC was not as much an ‘issue of quality’ as it was an ‘issue of power’11 because foreign civil codes and some laws, especially the French and Italian models, which had the most influence upon the Albanian Civil Code, were laws belonging to the thinking and norms of movements such as the Italian Renaissance and the French Revolution, which had had a profound influence upon modern western civilisation.
The entry into force of the ZCC also meant that Albanian civil law now belonged to the Roman-German family,12 thereby detaching it permanently from Ottoman law. The jurists of the time, who had a western education, based the design of the ZCC on the following main legal acts:13
• the French Civil Code (1804) (hereinafter FCC);
• the Italian Civil Code (1865) (hereinafter ICC);
• the Preliminary Provisions of the Italian Civil Code (1865);
• the German Civil Code (1900) (Bürgerliches Gesetzbuch) (hereinafter referred to as the BGB) (1990);
• the Italian Nationality Law (1912);
• the Swiss Civil Code (1912);
• the Joint Italian-French project ‘On Obligations’ (Des obliiations/Delle Obbliiazioni) (1928).
General Concepts and Institutes of Law in the ZCC
The 1928 Civil Code contained a total of 2,047 articles, the majority of which were based on the French and Italian codes, but at the same time the influence of the German and Swiss legislation was also obvious. One of the ZCC’s special features was that in its fourth and final book, it enacted into law the Italian-French project ‘On Obligations’.
Therefore, the structure and content of the Code was clearly based on more than one model.
The first book, entitled Persons and Family, was a combination of French, Italian, German and Swiss legislation – specifically, the civil codes of the period. The book begins with provisions relating to the civil rights enjoyed by every Albanian citizen, followed by rules and regulations governing the right to be granted, or to be deprived of, Albanian citizenship – here, under the influence of the French model. This part was followed by provisions on civil-status acts, again, along the lines of the French model, in which the family was considered to be one of the achievements of the French revolution.14
Under the influence of the German and Swiss models, the ZCC regulated legal persons. In terms of regulating this part of the law, the Albanian Code was quite advanced for the time (although Albania was still a feudal country). The goal of the Code was to facilitate the capitalist development of the country, legalising for the first time the creation of commercial legal persons. Furthermore, it also allowed for the establishment of associations that had no commercial purposes as legal persons, and it acknowledged associations of a political nature (Art. 424, ZCC).
Like the Italian Civil Code, the second book of the ZCC was entitled ‘Inheritance’. Here, the ZCC regulated the institute of inheritance in a separate book – unlike the French Civil Code, in which inheritance was perceived as a separate institution, under the title Des différentes manières dont on acquiert la propriété. Most of the provisions of this second book were based on the Italian Civil Code but also influenced by the French Civil Code. In fact, the second book may be considered one of the major achievements of the ZCC. It marked for the first time in the Albanian legal landscape that inheritance issues were regulated under the influence of a progressive philosophy: the right to inheritance should be enjoyed by every individual, a concept borrowed from the FCC, including by children born outside wedlock, and the right to inheritance was provided not only to men but also to women, an approach with was regarded as being quite advanced for the time.15 Also, for the first time in Albanian legislation, wills were deemed to be the expression of the free will of the testator and the regulation of wills in this book was of major importance.
The third book of the ZCC was entitled Objects, Ownership, and Its Modifications. Comparing this structure to that of the Italian Civil Code, the third part of which was entitled just Della proprietà, or to the French Civil Code, the second part of which was entitled Des différentes manières dont on acquiert la propriété, one can see that all of the articles in this book were based on the provisions of both the Italian Code and the French Code.16 On the right to ownership, the ZCC presented the principle that, ‘Ownership shall be the right to enjoy and dispose of a property, without any other limitations besides those regulated in law or by regulation’.17 The concept of ownership was, therefore, based on corpus and animus.18 However, possession of movable property was equated with the right to maintain ownership of the property (en fait de meubles possession vaut titre).19
The fourth book of the ZCC also concerned property and was entitled Methods of Acquisition and Transference of Ownership and Other Rights to Objects, and was inspired by the Italian–French project On Obligations (1928).20 This book was preceded by a general provision that stated, ‘Ownership shall be acquired through conquest. Ownership and other rights to properties shall be acquired and transferred through inheritance and conventions. It may also be acquired through prescription’.21 In the fourth book, the ZCC regulated different kinds of contracts, including an intertwining of those contracts which were considered as traditional contracts, such as: contracts of sale, exchange, donation, emphyteusis, rent, permanent royalties, use of borrowings, loans and guarantees, with new contracts which reflected the development of capitalist relations at the time, such as: labour contracts, entrepreneurship contracts and contracts of association, prescription, transaction, gambling, deposits and others. The fourth book also included the registration or notation of property in public registers. Through property transcription, this Civil Code (which was the first and only one in the history of the Albanian state since the declaration of independence from the Turkish Empire on 28 November 1912, until 29 November 1944, National Liberation Day) marked the initiation of a new era. In doing so the ZCC followed the line of the major civil codes22 of the time, in which property was considered sacrosanct and enjoyed absolute protection. The ZCC also contained a list of the limitations in the regulation of the rights to real property, as found in the French and Italian codes.23
The entry into force of the ZCC of 1928 was accompanied by the Law Provisions on the Application of the Civil Code. An important feature of this law was the adoption of a rule that repealed Ottoman law once and for all:
Mexhele, the Land Code, as well as all other provisions of Sharia and the ecclesiastical provisions belonging to the family law and other civil laws, all laws and regulations in general running afoul of the new Civil Code, shall be repealed. (Art. 61, ZCC)
However, the new Civil Code would not last long. Despite the values the ZCC presented, having been based on the contemporary legislation of the time, the changes that took place in Albania following the Second World War and the establishment of the so-called ‘power of the people’ would lead to its repeal in 1945.24
Albanian Civil Legislation During the Period 1945–1981
The next period in Albania’s legal history was clearly influenced by the socialist law of the Soviet Union. The Italian, French, German and Swiss laws and the jurisprudence that had been the basis of much of Albania’s civil legislation in the previous period were now seen as part of the legal and cultural baggage of capitalist states. As such, they were certainly not suitable as sources of legislation in Albania’s new socialist society. That said, Soviet socialist law was based on the Pandectist system and, as a result, Albania’s socialist law preserved a certain German influence, albeit an indirect one.25
According to Carel Stolker:
Albanian’s civil legislation of the time was inspired by the Marxist-Leninist doctrine. Technically, it contained elements of the Soviet model, but it also followed a German pattern which was also reflected in Soviet codifications. After World War II, and before 1981, Albanian civil legislation was enacted in the form of separate statutes.26
Once the Civil Code of 1928 was repealed, legislators followed by issuing legislation adapted to the new forms of social and economic relations that were appearing in the new socialist society. Beginning in the 1950s, a number of new laws regarding civil-law relations were adopted, including: ‘Law No. 2022 of 2 April 1955 ‘On the General Part of the Civil Code of the People’s Republic of Albania’; Decree No. 2359 of 15 November 1956 ‘On Legal Transaction and Obligations’; Decree No. 1892 of 5 July 1954 ‘On Inheritance’; and Decree No. 2083 of 6 July 1955 ‘On Ownership’.27
We have a systematic regulation of the norms of our civil law, which in general is fair and appropriate for the relations regulated by our civil law, which […] are mainly property relations, based on the system of the socialist economy and socialist ownership […].28
Thus, the civil-law system in the jurisprudence of the time was conceived of in the following way:
• The general part of the law included subjects of the law (physical and legal persons), objects (properties) of civil-law relations, legal transactions, representation and prescription.
• Ownership law included ownership in all its forms, socialist state ownership, cooperative socialist ownership, social ownership, personal and private ownership, as well as the institutes of possession and burden on immovable properties.
• Legal transactions and the law of obligations were included in a separate law. It did not divide the law into obligations and contracts,29 in which the latter were considered as special obligations and their number was limited, embracing the principle of numerus clausus (Art. 33(2), Decree ‘On Legal Transactions and Obligations’).
• Copyright law, was regulated for the first time by Decree No. 4389, dated 7.05.1968 ‘On copyright’ and Decree 4548, dated 3.10.1969, ‘On inventions and rationalizations’. Both decrees envisaged the intellectual and industrial rights in a moral and material way.30
• Family law was regulated by Law No. 4020 (Family Code) dated 23.06.1965. This code was very important because for the first time all types of family relations (marriage, divorce, adoption, tutorship, etc.) were specifically regulated by law.
• Inheritance was regulated by Decree No. 1892, dated 5.07.1954 ‘On Inheritance’, which envisaged the statutory regime and testate succession. The right of heirs was up to the third degree (sisters and brothers of deceased). The law acknowledged only a will made by a notarial act (Art. 41).
In this model, Albanian civil law followed the Pandectist system, using special laws to regulate the following: general principles of civil law; the law of obligations; real rights; family law, and inheritance law.31 These special laws, which were drafted in accordance with the Soviet model,32 marked the initiation of the inclusion of Albanian civil law within the family of socialist law.
The laws of the time were considered a ‘legal superstructure’ built upon the new forms of economic relations appearing in Albania in the process of establishing a socialist society.33 Nevertheless, despite the changes taking place in Albania at the time, private property did not completely disappear and it was still recognised as one form of ownership. However, this was short-lived, as the massive nationalisations and expropriations that were then undertaken led to the gradual disappearance of private property and the rise of new concepts such as state ownership of everything and the individual right to personal property only. These new concepts were reflected in the legislation that followed in 1981 that would regulate civil-law relations for a period of almost 12 years.
The fact that Albanian civil law belonged to the family of socialist law became clear with the Civil Code of 1981, adopted by Law No. 6340 of 26 June 1981 on the Civil Code of the Socialist People’s Republic of Albania,34 which entered into force on 1 January 1982.
According to Professor Gianmaria Ajani:
The second Civil Code of Albania adopted in 1981 was inspired by Marxist-Leninist Doctrine. Technically, it contained elements of the Soviet model, but it also followed a German (that is to say Pandectist) scheme which we find in Soviet codification as well.35
The communist ideology was embodied in the content, duties, foundations and principles of civil legislation, in which:
The Civil legislation of the Socialist People’s Republic of Albania shall express the will of the working class and other working masses, organized in the proletariat dictatorship state. Juridical-civil relations shall be based on the socialist ownership of production tools and the socialist economy system. (Art. 1(3), Civil Code)36
The principle of the Constitution of 1976 that definitively denied the right of the individual to private property and under which the state owned everything,37 resulted in the loss of the underlying foundations of civil-law relations, primarily property relations, because the individual was stripped of the right to property. Confirmation of this can be found in Art.7 of this Civil Code which provided: ‘The regulation of civil-law relations shall be carried out under the condition […] that private property has disappeared’.
The institute of ownership was divided henceforth into two types: state ownership and individual ownership. According to the principles established in the articles of this institute, ‘State property shall belong to all the people and shall be the highest form of socialist property. The state shall be the sole owner of all state property’ (Art. 70(1) and (2), Civil Code). The Code did not recognise other real rights at all. They were non-existent for the legislator at that time.
The Civil Code of 1981 was framed in a very simple way and contained only 354 articles. It could be said that its contents were too sparse compared to the Soviet legislation or to that of other socialist states.38 The loss of the property foundations that underpinned the civil-law relations of individuals defined the fate of the Code, which contained a limited number of legal provisions in which the main institutes of the civil law were minimised or left unregulated. Professor Gianmaria Ajani wrote:
Moreover, the self-sufficient Albanian regime, run by Party leaders for many decades, isolated the country from international trade and the world market. […] The unique isolation of Albania from world economy, in sum, did not permit the 1981 Civil Code to adapt to changing circumstances and, therefore, the Code, in fact, outlived the legal culture that created it.39
Or, in the words of Professor Stolker:
The 1981 Civil Code was unsatisfactory in certain important respects, it is inferior to other socialist codes because it lacks even those fundamental rules on private or individual activity that were found in most other socialist legislation.40
Inheritance, for example, was not acknowledged as a separate institute but was regulated as a type of acquisition of ownership, because the individual had very limited rights to devise and inherit. The limited number of legal heirs up to the third degree, which ended with siblings or the children of siblings, as well as grandparents, showed the limitations that had been placed on this institute. In the event that there were none of the above-mentioned family members, the property of a deceased went to the state (Arts 106 and 107, Civil Code). Similarly, institutes such as legacies and burdens,41 found in the legislation of all Western countries, were not regulated in the provisions on inheritance relations. The principle that an inheritance is opened when the person leaving the inheritance dies and that it is regulated in conformity with the law of the time when it is opened was also seriously infringed in the final and transitory provisions of the 1981 Code.42