Chapter 3 - Codification (German and French)

Question 1

What is the Peace of Westphalia

Answer 1

The two treaties signed in October 1648. Fragmented the Holy Roman Empire, accelerated the decline of the Holy Roman Empire by granting princes, bishops, and other local leaders control over religion => the STATE has religious control expanding state power.

Question 2

Significance of the Peace of Westphalia

Answer 2

The legitimacy to govern and rule is no longer derived from the divine right of kings (historical authority deriving from a hereditary lineage of kings) + the state has greater religious control

The sovereignty is now derived from the centralization of authority and military from Charles VII’s invention of centralized taxation, the invention of a centrally controlled permanently standing army and improvement of artillery technology.

Question 3

What is the Code Civil des Francais

Answer 3

Civil Code of the French /napoleonic code drafted in 1804

Question 4

significance of the Code Civil des Francais

Answer 4

1. Defined the French state by using law as a device that articulates rationality which is a legitimating factor
2. glorify the nation state by repealing prior law such as laws created before the state (which violated this statist ideal).
3. Make law as the intellecutal foundation of the French state that appeals to the ordinary average French citizen
4. a simple, nontechnical, and straightforward legal system that ordinary citizens could read and understand what their rights and obligations were without having to consult lawyers and go to court
5. prevent any reference to authority outside of the code (judicial authority or analogy) and a complete separation of power between the legislature and the judiciary. Judges apply through rational deduction and not interpretation, legislature create law. ->

Question 5

Goal of the code civil des francais

Answer 5

The legislation must be clear, complete, coherent, little gaps as possible to prevent judges from deciding the interpretation or meaning of an ambiguous statement
to rely as little as possible on lawyers, establish an entirely new legal order

Question 6

French codification and the three strands of law

Answer 6

Will/expression : to manifest a distinctive French Nation-state

Reason: for this codification of laws to be based on reason and autonomous

Social order: derived from French legal practice consisting primarily of Roman law from Southern France + elements of customary law from Northern France. Also borrowing the overall structural organisation of the Institutes (i.e., the 3rd book of the Corpus Juris Civilis) where a significant element of CJC is social order as a source of authority

Question 7

What is the German historical school

Answer 7

Started by von Savigny and his followers.
To not adopt the French style codification but German-style codification from studying existing German law, its historical development according to the laws of the German people

Question 8

Who is von Savigny, what does he stand for?

Answer 8

1. Study the German legal system in their historical context (roman law and old germanic law) to scientifically derive essential principles to reconstruct the legal system.
   A scientific study of the data of German law for the code to be a tool used by professionals trained in the study of law
2. Believe that german law is grounded in the civilisational history of the German people-> an expression of the volksgeist. This conception of the volksgeist is elitist, only identifiable by specially trained jurists.
3. Kantian whereby the application of fundamental principles to society results in a top down deductive approach

Question 9

what is the volkgeist

Answer 9

essence of the german people, “common consciousness of the people” which the romanist believe can be derived through the study of roman law and old Germanic law

Question 10

who are the Germanist

Answer 10

1. Focused on the idea of law as an ethnic expression so they perceived the idea of a Volksgeist in a traditional popular sense. Hence, German law should be the source and main object of German legal science
2. Germanists believe that law is an ethnic expression of will, took Law as custom of the people as a popular project and reject the elitist aspect of Savigny’s volksgeist.

Question 11

Reason for the Historical School to split

Answer 11

1. The inconsistency in tracing the origin of law to the Volksgeist
2. The historical school was not built upon legal history, but rather on the use of historical methods to build a system of legal principles. The Romanists claimed that only Roman law offered the necessary training in systematics, naturally relegating the Germanists to a secondary role who were unhappy with this minor role in legal science

Question 12

Difference between German codification and French style codification

Answer 12

Codification of essential principles of the german law and a scientific historical study of the German legal system vs French wanting to establish a entriely new legal order

Not revolutionary, does not talk about Law as transcending and ideological but more of law as ethnic and practical, more conservative VS French codifcation as a form of liberation and emancipation

Made for bureaucrats where Lawyers are still needed to interprete and apply the law with the code responsive to the needs of those trained in law VS wanting to make the French code easily accessible to commoners

Question 13

Similarites between German and French style codification

Answer 13

1. Separation of powers between law and government
2. Unify the state by providing a signle body of law
3. Still strive to achieve a code that is clear, coherent, complete

Question 14

the significance of rudolph von jhering

Answer 14

founded the free law movement.
new school ‘Practical Jurisprudence’ believing that law is a product of collision of social interest, and it serves an empirical role.

Question 15

why did von Jhering evolve away from Romanists to find the free law movement

Answer 15

posits that law serves a social purpose and is to be found in social struggles, law derives its legitimacy from its purpose rather than truth

Question 16

Max Weber’s key inventions

Answer 16

• founded Key concepts of modern capitalism and industralization
• Identifies modern emphasis of rational-legal authority as opposed to traditional or charismatic authority
• Identifies bureaucracy as a modern industrial ideal type resultant of rational legal theory
• Identifies modern notion of rule of law

Question 17

Max Weber’s legacy

Answer 17

1. founder of legal sociology

2. conceptualisation of industrial soceity is still prevalent today

Question 18

Carl schmitt’s idea of the exception and how is it resulted to the sovereign

Answer 18

an essentially inchoate situation that can be approximated as one of dire emergency or “extreme peril” to the state that cannot be anticipated. Hence, there ultimately must exist a figure whose power it is to determine the existence of the exception and who obtains “principally unlimited authority” after having declared that state.

Question 19

difference between Schmitt and Kelsen

Answer 19

Schmitt believes that authority exists beyond the law, that it is possible for the sovereign to operate beyond the ambit of the law for the public good. The sovereign is capaable of deciding whether the ‘state of exception’ is present and his decision cannot be influenced or swayed. VS Kelsen’s grundnorm where the norms which determine what behaviour ought to be is derived from

Kelsen (positivist) refuses to see that judges must contribute a part of themselves into every decision in order to adjudicate. According to Schmitt, positivists do not recognise the factual reality of what judges actually do and what judges ought to do when they adjudicate

Question 20

who is the sovereign

Answer 20

speaks on behalf of the volkgeist as an authoritarian figure - influence of Germanists

Question 21

Is Schmitt a germanist?

Answer 21

yes. he views the state as an ethnic construct, a civilisational, spiritual, maybe even genetic articulation of German identity that operates above and prior to law.

Question 22

Schmitt’s conception of the constitution power (power of the people)

Answer 22

Revitalised Constituent power (ultimate power of the people) as the foundation of the state. He postulates that ethnic politics is the foundation of the state. Constituent power is the authority of the state
He thus visualizes the constitution in two ways: political constitution and legal constitution

Question 23

Kelsen and his legacy?

Answer 23

the law consists of norms where norms are an “ought” proposition. All norms rest on the Grundnorm selected by the legal scientist on the principle of efficacy - that is to say that the legal order as a whole must rest on an assumption that is by and large efficacious

Question 24

Relating Grundnorm to our constitution?

Answer 24

This means that The State as a purely legal construct where its foundation is laws passed by parliament. The state and essence of the state is being built up by law

(cf Schmitt) who believes that the constitution is not closed and is more than a collection of multi-tiered forms; it is open to external expressions of concrete reality, such as the exception