Codification and the Rise of Modern Civil Law

Faculty of Law, University of Auckland, Auckland, New Zealand


8.1 The Codification Movement

In the seventeenth and eighteenth centuries, the rise of nationalism and the consolidation of royal power in Europe entailed an increased interest in the development of national law and thereby precipitated the movement towards codification. The demand that law should be reduced to a code arose from two interrelated factors: the necessities to establish legal unity within the boundaries of a nation-state, and develop a rational, systematised and comprehensive legal system adapted to the conditions of the times.1 The School of Natural Law had a rationalist approach to institutional reform and emphasized comprehensive legal system building. Thus, it provided the ideological and methodological basis to launch the codification movement. The unification of national law through codification engendered the eventual displacement of the ius commune and thus Roman law ceased to exist as a direct source of law. But as the drafters of the codes greatly relied on the ius commune, elements of Roman law were incorporated in different ways and to varying degrees into the legal systems of Continental Europe. The first national codes designed to achieve legal unity within one kingdom were compiled in Denmark (1683) and Sweden (1734). The process of codification continued in the late eighteenth and early nineteenth centuries with the introduction of codes in Bavaria (Codex Maximilianeus Bavaricus, 1756),2 Prussia (Allgemeines Landrecht für die Preussischen Staaten, 1794) and Austria (Allgemeines Bürgerliches Gesetzbuch, 1811). The natural law philosophy exercised a strong influence on both the contents and structure of these codes. However, the most important codificatory event of this period was Napoleon’s enactment in 1804 of the French Civil Code (Code civil des francais).

8.1.1 The Codification of Civil Law in France

At the time of the French Revolution (1789) there prevailed in France two great bodies of law: the customary law in the North with Germanic origins that was deeply influenced, and in some areas replaced, by Roman law; and the written law of the South based on Roman law. At the same time, royal ordinances applied throughout the country.3 Although a considerable degree of uniformity had been attained within each of these systems, there still existed considerable regional differences within each of the main territorial divisions. The French Revolution ushered in a new phase in French history, underpinned by new philosophical ideas concerning law and its role in society. The Revolution was generally hostile towards the past and treated both Roman law and customary law with suspicion. Frequent demands were voiced by the deputies of the National Convention for the construction of a code of law that would be simple, democratic and accessible to every citizen and whose principles would be derived from reason alone.4 In the eyes of the revolutionaries, the main elements that had to be eliminated were the feudal system and the control of most of the land by few people; social, political and economic inequalities; and royal and Church despotism. The revolutionary legislation thus abolished feudal rights, the procedural privileges of the clergy and nobility, and most future interests in property; confiscated the estates of the Church; abolished the division of people into social classes; removed the civil disabilities of women, illegitimate children and aliens; and secularized marriage.5 However, the post-revolutionary period featured a sharp reaction against the excesses of the Revolution and this is reflected in the law of that period.6 Thus, the legislation of Napoleon retained much of the old law and only some aspects were apparently influenced by revolutionary ideas. The most important changes occurred in the area of the law of property, where there is no trace of feudal institutions (such as tenure). In other areas of the law, such as family law, we notice a clear departure from revolutionary ideas and legislation.

The French Civil Code of 1804 was drafted by a commission of four eminent jurists: Tronchet, the President of the Court of Cassation and former defence counsel for King Louis XVI; Portalis, a lawyer and provincial administrator at Aix-en-Provence and a close supporter of Napoleon; Bigot de Préameneau, government commissioner for the Tribunal de cassation and former lawyer at the Parliament in Rennes; and Maleville, formerly a lawyer at the Parliament in Bordeaux and, later, judge at the Court of Cassation.7 The chief aim of the commissioners was to fuse the Roman and customary laws into one coherent system that would also embody those ideas of the Revolution that were still approved by public opinion.8 The three ideological pillars of the Code were private property, freedom of contract and the patriarchal family. The position adopted was that the primary role of the state was to protect private property, secure the enforcement of legally formed contracts and warrant the autonomy of the family. With respect to private property, the Code consolidated the rejection of feudalism and its institutions achieved by the French Revolution. Through private law devices, such as the imposition of limitations on the freedom of testation, the drafters of the Code sought to break up the estates of the once powerful landowners. The formal division of the Code into three parts—Persons, Property and the Different Ways of Acquiring Property—was similar to that adopted by the drafters of Justinian’s Institutes. Each part or book is divided into titles, such as Enjoyment and Loss of Civil Rights, Marriage, Divorce, Domicile and Adoptions. These are subdivided into chapters and, in several instances, into sections. Book One covers matters such as marriage, divorce, the status of minors, guardianship and domicile; Book Two deals with property, usufruct and servitudes; and Book Three includes diverse matters such as wills and intestate succession, donations, contracts, torts, matrimonial property settlements, sale, lease, partnership, mortgages, special contracts and such like. Certain parts of the Code (such as that addressing the law of contracts) were to a great extent based on the Roman or written law of Southern France, while other parts (such as family law and the law of succession) reflect a stronger influence from the North French customary law of Germanic origin.

The drafters of the Code recognized that a legislator could not foresee all the possible applications of a basic legal principle. Therefore, they opted for the flexibility of general rules rather than for detailed provisions. As Portalis commented, “we have avoided the dangerous ambition to regulate and foresee everything… The function of the law is to determine in broad outline the general maxims of justice, to establish principles rich in implications, and not to descend into the details of the questions that can arise in each subject.”9 From this point of view, he identified the main tasks of judges in a codified system of law as being to clarify the meaning of the legal rules in the various circumstances that are submitted to them; to elucidate any obscure facets of the law and to fill its gaps; and to adjust the law to the evolution of society and, to the best extent possible, utilize the existing texts to avoid any potential inadequacy of the law in the face of contemporary problems.

The new code, an expression of the power of the middle class, represented both a substantial and formal departure from the preceding system of law, which it was designed to replace. Even the many pre-revolutionary rules and institutions incorporated into the code were deemed effective only because of their reenactment as part of the new legislation. However, despite the formal rupture with the ius commune, the code was of necessity built up of culturally familiar concepts, institutions and ways of thinking about law derived from the preceding system. Thus, much of the earlier legal tradition, with a new ideological basis, was carried over into the code.

The importance of Napoleon’s Code is attributed to not only the fact that it fostered legal unity within France, but also the fact that it was adopted, imitated or adapted by many countries throughout the world. This was partly due to its clarity, simplicity and elegance that rendered it a convenient article of exportation and partly due to France’s influence in the nineteenth century.

8.1.2 The Codification of Civil Law in Germany

In Germany, the French Civil Code attracted a great deal of attention and parts of the country adopted this law as Napoleon extended his rule over Europe. However, the rise of German nationalism during the wars of independence compelled many scholars to express the need for the introduction of one uniform code for Germany to unite the country under one modern system of law and precipitate the process of its political unification. In 1814, A. F. J. Thibaut (1772–1840), a professor of Roman law at Heidelberg University, declared this view in a pamphlet entitled ‘On the Necessity for a General Civil Code for Germany’.10 Thibaut, a representative of the natural law movement, claimed that the existing French, Prussian and Austrian civil codes could serve as useful models for the German draftsmen. Thibaut’s proposals encountered strong opposition from the members of the Historical School,11 headed by the influential jurist Friedrich Carl von Savigny (1779–1861).12 Savigny elaborated his thesis in a pamphlet entitled ‘On the Vocation of our Times for Legislation and Legal Science’.13 He asserted that law was similar to language, ethics and literature in that it was a product of the history and culture of a people, and existed as a manifestation of national consciousness (Volksgeist)—it could not be derived from abstract principles of natural law by logical means alone.14 From this point of view, Savigny argued that the introduction of a German Code should be postponed until both the historical circumstances that moulded the law in Germany were fully understood and the needs of the present environment were properly assessed. A perplexing question that Savigny had to answer was how to reconcile the idea that the law emanated from the people with the fact that the Roman law operating in Germany was an alien importation. Savigny responded in the following manner: at a certain stage in a nation’s development, the creation of law by the people became an overly complex and technical process and further development necessitated the establishment of a professionally trained class of lawyers and jurists. In Germany, this stage was reached in the fifteenth century and the jurists who were responsible for the reception of Roman law during that period were true exponents of the German national spirit. Thus, Roman law, as organically received law, is part of German legal history and contemporary legal life; at the same time, it supplies the connecting link between German law and European legal culture in general.

The early proposals for codification were abandoned due to the influence of the Historical School and, perhaps more importantly, the lack of an effective central government. At the same time, scholarly attention shifted from the largely ahistorical natural law approach to the historical examination of the two main sources of the law that applied in Germany, namely Roman law and Germanic law, in order to develop a true science of law. A group of scholars focused on the study of Germanic law, whilst others (including Savigny) concentrated on the study of Roman law and explored beyond the ius commune into the Corpus Iuris Civilis and other ancient sources. The latter jurists set themselves the task of studying Roman law to expose its ‘latent system’, which could be adapted to the needs and conditions of their own society. In executing this task, these jurists (designated Pandectists) elevated the study of the Corpus Iuris Civilis and especially the Digest to its highest level and produced an elaborate and highly systematic body of law (Pandektenrecht) for nineteenth century Germany. Leading representatives of the Pandectists were Georg Puchta, Adolf Friedrich Rudorff, Ernst Immanuel Bekker, Alois Brinz, Heinrich Dernburg, Rudolf von Ihering and Bernhard Windscheid.15 They produced an elaborate and highly systematic body of law (Pandektenrecht) for nineteenth century Germany.

Although the Pandectist movement emerged from the Historical School, it ultimately adopted a rather ahistorical and primarily doctrinaire approach to law. The Pandectists adopted this approach believing in the superiority and eternal validity of Roman law. Their chief objective was to construct a legal system where all particular rules could be derived from and classified under a set of clearly formulated juridical categories and abstract propositions. In this respect, law is approached as a form of logic, a coherent assembly where everything can be reduced to general principles, concepts and conceptual categories. Extra-legal evaluations do not matter, as propositions of law cannot be considered, let alone justified, from an extra-legal point of view. The Pandectists’ conception of law as a logical system (sistema iuris), distinct from the social, religious, political and economic domains, had a strong impact not only on legal theorists but also on judges: it gave social, ethical, political and economic neutrality to the logical processes that led to specific judicial decisions. In the area of legislation, this approach to law has entailed the use of a technical and abstract language. It also led to a high level of precision in selecting the relevant terms and phrases whose meaning remains fixed throughout the text of the law.

The process of abstraction and generalization is natural and indeed inevitable, if the law is to consist in anything other than a collection of practical rules and solutions to actual problems. However, it involves the danger that once a general rule is formulated it tends to dominate legal life rather than adapt itself to it. The legal genius of the Romans was displayed in their ability not only to create abstract propositions through an analysis of their law, but also to create sufficient flexibility in the abstractions to enable their synthesis into new rules and principles when change was needed. The Roman jurists never made the mistake of over-valuing their abstractions. In contrast, the German jurists became fascinated with the concepts themselves and came to reject as logically unthinkable any change that involved a conflict with the concepts they had formulated. This attitude was particularly dangerous, since the Roman abstractions were formulated as summaries of their own development whilst the German Romanist scholars wished to transpose them to the completely different context of nineteenth century Germany. It was unavoidable that the Pandectists, consciously or unconsciously, considerably distorted the Roman law concepts they revised. Above all, their master concept that law exists to further the realization of the individual will was derived from Hegelian philosophy rather than Roman jurisprudence. The most rigorous attack on the methods of the German legal scholars came from the ranks of the Pandectists themselves in the person of R. Ihering.16 Ihering asserted that “our Romanistic theory must abandon the delusion that it is a system of legal mathematics, without any higher aim than a correct reckoning with conceptions.”17 Nevertheless, the preoccupation of the Pandectists with the formulation of abstract concepts continued throughout the nineteenth century and their approach played an important part in the process towards the codification of the civil law in Germany.

While the Pandectists conceded a central role to the free will of the individual as a participant in law, the jurists of the Germanistic branch of the Historical School emphasized the social aspects of law, giving primacy to collectivism and cooperativism over individualism. This approach was most distinctly represented by Otto von Gierke (1841–1921), who was appointed professor in Berlin in 1887. Other leading exponents of the Germanistic branch were Karl Friedrich Eichhorn, Jakob Grimm, Georg Beseler and Emil Brunner. These jurists erected from the scattered and fragmentary expressions of Germanic legal thought embodied in the legislation and judicial decisions of the German states, and from the history of Germanic legal institutions, a distinct system of law, and strongly championed its principles against those of the Pandectists.

While these historical and theoretical controversies were raging, the political unification of Germany occurred under Chancellor Bismarck and the Second Reich was founded in 1871. However, legal unity did not immediately follow political unity. Throughout the nineteenth century, Germany remained divided into three major areas with respect to private law. The left bank of the river Rhine had been annexed by France in 1794. In this part of the country and other territories under French control, the French Civil Code was in force. Despite the theories of the Historical School, this Code was well received and successfully applied. Prussia and Saxony were territories with codified law, the latter having adopted a Code in 1863. The remainder of Germany was the land of the Roman-canonical law of the Pandectists, modified by particular regional and municipal statutes and customs. But these divisions were clearly no longer tolerable and a commission of 11 members was appointed in 1874 to draft a civil code for the whole of Germany.18 The code emerged from a 20-year process that involved two drafts.19 The first draft was published in 1887 and it provoked strong criticism from Germanist scholars who objected to the fact that the work was composed almost entirely from the Roman element of the law. The critics also denounced the abstruse language of the work and its remoteness from everyday social and economic life.20 In response to these criticisms, a second commission composed of ten permanent members (university professors, lawyers, state officials and professional experts from commerce and industry) and 12 non-permanent ones was appointed by the government to redraft the code in 1890. This second draft, as modified by the Council of State (Bundesrat) and a commission of 21 members of the parliament (Reichstag), became law on 14th July 1896 with effect from 1st January 1900.

The German Civil Code, the Bürgerliches Gesetzbuch or BGB., is marked by two outstanding characteristics: its highly systematic structure and its conceptualism. In both these respects, it owes a great deal to the work of the German Pandectists of the nineteenth century. The Code is divided into five books. The first book contains the general principles of the entire civil law, i.e. the principles that have general application to all legal relations except when special rules are provided. It includes provisions relating to persons (both natural and legal); the nature and classification of things and juristic acts; acting capacity; offer and acceptance; agency and ratification; limitation and prescription; and private means of redressing wrongs and securing rights. The second book is devoted to the law of obligations (Schuldrecht), which is concerned with the legal relation between particular subjects of rights. The third book contains the law of property (Sachenrecht) that addresses the rights of persons over things by describing the content, acquisition, loss and protection of real rights. The fourth book covers family law (Familienrecht) and is divided into two parts: the first part regulates personal relationships in the family; the second regulates the property relationships of family members. Finally, the fifth book deals with the law of succession (Erbrecht) that regulates the succession to the rights and liabilities of a deceased person. As already noted, the influence of the Pandectists is reflected in the Code’s systematic consistency, succinctness and conceptual clarity. However, the work is not designed to be intelligible to the layman; it is codified jurists’ law for jurists, only to be read and understood by them. This did not pose a problem for judges and legal practitioners, who were familiar with the style and methods of the Pandectists through their university legal training.

Notwithstanding their important differences with respect to style and structure, the German and French Civil Codes have a great deal in common. Both codes drew heavily on common sources of law—the ius commune and their respective national laws. The influence of the ius commune derived from Roman law is particularly evident in the field of the law of obligations, as well as in the way the materials are structured and systematized. On the other hand, native sources of law appear to have exercised a considerable influence in the areas of family law and the law of succession. Moreover, the two codes have a common ideological basis as both are grounded on nineteenth century liberalism and are permeated by the notions of individual autonomy, freedom of contract and private property. As many changes in society transpired during the period of a hundred years that separates the two codes, the German Civil Code is in some respects more advanced or up-to-date than the French one. For example, several important provisions of the German Code recognize that certain private rights are related to certain social obligations and that a subjective right can be misused or abused. In the field of family law, the authority of husbands and fathers is less absolute than in the French Code and the definition of family is not as broad as that adopted by the latter code. Moreover, women have more power in relation to their own property matters. Certain aspects of contract and tort law reflect the effects of the increasing complexity of commercial relationships as well as the advances of industrialization.

In the period following the enactment of the Civil Code, German scholars focused mainly on the task of rendering the Code applicable in practice. This entailed explaining its difficult text, and elucidating and developing its concepts and principles. During the same period, the reaction against the excessive formalism and conceptualism of the Pandectists grew stronger. After the First World War, German legal science began to discard the methods of the Pandectists. While preserving the Pandectists’ genius in formulating general concepts, German jurists started to place more emphasis on the examination of detailed facts and the operation of legal principles in concrete factual situations. This process was interrupted, however, by the rise of National Socialism in the post-WWI period and the decline of liberal democratic ideas in Germany. Nevertheless, these new ways to conceptualize the law—associated with legal realism and the sociology of law—entered legal thinking in America and other countries, and exercised a strong influence on the development of legal thought in the twentieth century.

8.2 The Civil Law Tradition

Legal scholars use the term ‘civil law systems’ to describe the legal systems of all those nations predominantly within the historical tradition derived from Roman law as transmitted to Continental Europe through the Corpus Iuris Civilis of Emperor Justinian.21 In the foregoing discussion we have traced the long and intricate process of amalgamation of Roman, Germanic and other bodies of law that form the substance of modern civil law systems. The material also noted the effect thereon of historical developments, cultural factors and the exigencies of legal practice. This process culminated in the codification of civil law in Europe. The codes constitute a new point of departure in the development of the civil law, but its history obviously does not end with their enactment. In the years following the publication of the codes, the dynamics of legal change have worked primarily through special legislation and judicial interpretation, as well as through code revision, constitutional law and the harmonization of law at a European or regional level. Legislatures in civil law countries responded to changes in society and the economy by excising large areas of the law from the domain of the civil codes. They also created entirely new areas of law that fall outside the scope of the codes, such as employment law, insurance law, competition law, and landlord and tenant law. Furthermore, legislatures endeavoured to update the civil codes by modifying their texts. Both the French and German codes have been amended several times since their introduction. In general, code revision has been more extensive in the area of family law than in any other areas. Many family law reforms were precipitated by constitutional provisions introduced after the Second World War and by international conventions promoting new ideas of equality and liberty that were at variance with the patriarchal family law of the civil codes. In other areas of the law, legislatures have often encountered difficulty in forging the necessary changes within the structure of the civil codes. To deal with this problem, legislatures have resorted to the introduction of special statutes outside the codes—statutes that could more easily be amended as socio-economic conditions change.

While legislatures created and developed bodies of law outside the sphere of the civil codes, the courts have introduced new rules through the interpretation of the codes’ provisions. This judicial adaptation of the codes to new social and economic conditions has produced a new body of law, which is based on the expansion through interpretation of the existing legislative texts. In some civil law countries, such as France, this process has been facilitated by the structural characteristics of the civil code—its gaps, ambiguities and incompleteness. The drafters of the French Civil Code never imagined or anticipated the litigation-producing aspects of modern life such as industrial and traffic accidents, telecommunications, the photographic reproduction of images and mass circulation of publications. Thus, it is no surprise that in essence the modern French law of torts is almost entirely judge-made. Regarding the later codes, such as the German Code, the judicial adaptation of the civil law to changing social and economic conditions was facilitated by the inclusion in the codes of ‘general clauses’—provisions that deliberately leave a large measure of discretion to judges. Although traditional civil law theory denies that judges make law or that judicial decisions can be a source of law, contemporary civil law systems are more openly recognizing the unavoidable dependence of legislation on the judges and administrators who interpret and apply it.

8.2.1 Geographic Distribution of the Civil Law

As previously noted, the historical origins and development of a legal system is a factor that sets that system apart as a member of the civil law family.22 Upon closer examination, history is also a factor that explains the internal differentiation within the civil law. It is thus unsurprising that contemporary comparative law scholars identify sub-categories of legal systems within the civil law family, with the Romanistic-Latin or French and the Germanic systems forming two secondary groupings or sub-families.23 The distinctive French and German legal codifications and juristic styles each exerted a far-reaching influence worldwide, and to some extent their influences overlapped. Indeed, one might argue that the ‘typical’ civil law systems today are not those of France and Germany, but rather those systems that have undergone a combined influence of both. Nevertheless, in the post-codification period, French law and German legal science have constituted the two main tributaries to the civil law tradition.

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