natural law and codifications Flashcards
natural law
= impeccable, supra-human, universal and unwritten law that should be binding for some motive (e.g. God, ethics or reason) in contrast to the human (positive) law, which is changeable and possibly fallible.
Aristotle: Nikomachean Ethics
— things that are by nature vs. things which are by convention
— those by nature are not changeable
Cicero: De Legibus
— common to all men and restricted to any place
— no need of interpretation, recognised by men as being in accordance with ‘right reason’
— implanted in nature
— unchanging through time and space
— fundamental: cannot be altered or abolished
natural law in Roman Empire
Ulpian’s trichotomy:
1. ius civile: law applicable to Romans, law of any particular state
2. ius gentium: laws common to every state eg. slavery, contract of sale
3. ius naturale: ‘which nature taught animals’ → Paul: ‘which is always just and fair’
Justinian’s Intitutiones: natural laws are which are equally observed by all nations, established by divine providence and remain firm and unchangeable forever.
Thomas Aquinas: Summa Theologica
— eternal law cannot be directly known by man bit could be discovered in three ways:
1. divine law: divine revelation, Holy Writ → authority unquestioned!
2. natural law: „participation of eternal law in the rational creature“, which can be recognised as self-evident by any thinking person.
3. human law: laid down by ruler of the community, whose authority stemmed from the supposition that he exercised his power by divine right.
— divine law prevails over human law
— natural law also mostly prevails over human law, but it may be necessary to obey it ‘to avoid scandal or disturbance’
Spanish Scholasticism (16th– 18th century)
- The University of Salamanca
- problems with the conquest of the „New World“ to which ius commune cannot offer solutions
- Domingo de Soto: commentaries on Aquinas moved in the direction of equating natural law and moral principles.
- Francisco de Vitoria as founding father of international law → Spanish have the right to inhabit the new world according to natural law!
Hugo Grotius: De Jure Belli ac Pacis
— influenced by the Spanish writers: treatment of natural law similar to Molina and Lessius
— immensely popular and influential: giving concrete shape to the rules of natural law
— natural law as core immutable principles stemming from nature which might have been laid down by God, but their existence does not depend on the existence of God!
— distinction between law of nature (self-evident) and law of nations (not so self-evident)
— human beings are social animals: do not just follow their own self-interest
— more concrete conclusions: the Dutch have the right of free trade over the sea!
basic principles of Grotius
generally recognised as law in all human societies, that should govern the relations between states:
→ Pacta sunt servanda
→ Damages have to be compensated
→ Penalties have to be imposed
Samuel Pufendorf
— natural law professor at Lund University
— starting point if human sociability: divided into duties owed to God, duties owed to one’s neighbour and duties owed to oneself.
— mathematical thinking and logical deduction applied to natural law
— provides a rational structure and a „scientific“ method for identifying it
— natural Law becomes more and more pure „Law of Reason“ (Vernunftrecht)
— ius gentium and ius naturale indistinguishable: inter-state relations were governed by immutable principles in the absence of specific treaties.
Law of Reason (Vernunftrecht)
— Geometric method, finding principles and axioms to derive rules of law, principle of non-contradictions
— Systematization of 17th and 18th century as precursors for codifications
— Late adaptation in Habsburg Empire (Karl Anton Martini and Franz von Zeiller in the late 18th and beginning 19th century)
— Natural law as an instrument to criticise positive law
other influential natural lawyers of the 18th century
Christian Thomasius: natural law is no more than a template for positive law and has no obligatory dimension in itself.
Christian Wolff: applying scientific method to diverse fileds: economics, psychology, cosmology.
Jean Domat: Roman law largely embodied natural law: reordering Roman texts according to their rational basis
changing understanding of nature
— Teleological thinking as preeminent in Antiquity and Middle Ages (Aristotle’s causa finis)
— Human acts and society serve a higher purpose (Augustine)
— modern times: new conception of studying and explaining nature with new methods (e.g. Descartes)
— Focus on the question how nature works (Aristotle’s causa efficiens)
natural law in England
— no abstract frameworks like Roman law and no codification movement
— influence of Grotius, Hobbes, Locke and Putendorf
— no wholesale adoption of natural law rules!
Sir William Blackstone: Commentaries
— concrete precepts built on self-evident foundations
— systematic strcuture, pointing to having a basis in rationality
characteristics of a codification
— an entire legal order or an entire area (e.g. General Code or Criminal Code)
— Systematic and non-contradictory in itself → clarity and transparency
— Must be exclusive in its applicability → exclusion of other sources of law
— Must be enacted by a competent authority
Codex Maximilianeus Bavaricus Civilis 1756
— Civil law, feudal law, public law
— contains Ius Commune, Ius Commune used as subsidiary law
— natural law only as the impetus, not in the content
Prussian General State Law (Allgemeines Landrecht) 1794
— entire legal order of Prussian states (civil, commercial, criminal, ecclesiastical and administrative) based on Roman law
— 19.000 provisions, casuistic and lacking linguistic simplicity
— provincial laws have priority
— influenced by the usus modernus pandectarum
Code Civil (Code Napoleon) 1804
— One of „Five Codes“, this contains civil law → greatest reliance on natural law
— first true natural law code: contained abstract propositions!
— Secularized, based on civil rights
— Unified civil law completely, no subsidiary applications!
The Developement of the ABGB:
- 17th century: proposals for a codex, but only private collections
- Maria Theresia starts collection (Codex Theresianus, CT) → too long, Johann Bernhard von Horten shortens it
- Part One of „Josephinian Code“ (personal, family, matrmonial) but Joseph II. dies before completion
- 1790: Karl Anton von Martini takes up work with a commission
- 1797: General Civil Code for Western Galicia (GCCWG)
- 1801-1810 another commission under Franz von Zeiller revises the GCCWG
- General Civil Code enacted 1811, in force 1812
Karl Anton von Martini
— son of a lawyer from the Trento,
— High positions on the Habsburg court
— professor for Natural Law and Institutiones, writes well-known textbooks on Natural Law
— Draws (also) from catholic sources of Natural Law
— Sees Natural Law in accordance with newer currents as adaptable to local circumstances (makes it acceptable for Habsburg Absolutism)
— Pupil Franz von Zeiller completes codification work for him
General Civil Code (Allgemeines Bürgerliches Gesetzbuch) 1811
- natural law influence: system, liberties
- absolutist influence; feudal order remnants
- exclusive and general application for civil law
- abstract, based in principles, systematically ordered
partial reform of ABGB
- Encompassing reform in a single act of lawmaking is not possible, hence three partial amendments by way of imperial emergency decree:
1914: Family, guardianship and inheritance law
1915: Boundary demarcation
1916: Property law and law of obligations, in particular law of damages, warranty and statute of limitations
- Modernisation under the influence of codifications in Germany and Switzerland
- Adoption especially from the German BGB
- Adaptation to the state of the art of civil law
ABGB as a model
Direct validity: Liechtenstein
- Principality of Moldova (1817) Serbia (1844), Montenegro (1888).
- Parts of Switzerland (cantons of Aargau, Solothurn, Lucerne and Bern)
- Transylvania
- The parts of Poland, Czechoslovakia and Yugoslavia that belonged to the Habsburg Empire until 1918
Code Civil as a model
direct validity in the course of the Napoleonic Wars in: Left Rhine territories in Germany, Luxembourg, Belgium, Piedmont-Sardinia, cantons of Bernese Jura and Geneva in Switzerland
Code Civil was adapted in:
* Piedmont-Sardinia (1837), Netherlands (1838), Italy (1865), Portugal (1868) Spain (1889)
* Confederation of the Rhine in Germany
* Some cantons in Switzerland
* Louisiana after the purchanse by the US
* Lower Canada (Quebec)
* Latin American states after independence
* Japan creates drafts upon the French model in the 1870s (come never into effect)
Référé législatif
→ Interpretation and further development of the law only by the legislaton
→ Binding of the judge!
→ Codex Theresianum (1766) and the Josephinian Code (1786) still provide for it, but West Galician Code (1797) and General Civil Code (1811) no longer contain it
→ The General Civil Code even gives explicitly power to the judge to decide cases when neither the words nor the natural meaning is clear
→ Référé législatif is to be distinguished from authentic interpretation, according to which only the legislator may explain the law in a generally binding manner
→ Interpretation of the codification by the courts is allowed, but the result is not generally binding but relevant only for individual cases
Friedrich Carl von Savigny
- “Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft”
- Idea is that law is rooted in the Volksgeist that evolves throughout history
→ Role of legal scholars is to find the Volksgeist through historical inquiry and to systematize the essence of the so-found law
→ Legal scholars as main actors in the creation of law - not ready for codification: legal scholarly work has to be further developed in order to gain a profound basis for a codification
- Task of legal scholars is to elaborate the principles of the historically developed law and to systematise them
methods of the Historical School
Law is seen not as derived from reason or enactment, but as a product of historical development:
— Knowledge of the law of the present by using a historical-systematic method
— Text interpretation, inquiry into the historical development of certain legal figures
— Systematisation by elaborating leading principles and by reconstructing the inner unity
— Creation of legal unity and certainty as a goal
— Two currents: Romanists and Germanist
Historical School in Austria
- Franz von Zeiller’s academic reform 1810: The General civil code (“Austrian private law”) is integrated into the curriculum at the universities
- Thun von Hohenstein’s academic reform of 1852/55: breakthrough of the Historical school in Austria
- Massive intensification of legal history teaching
- Natural law doctrine is pushed back
- Appointment of Joseph Unger (1828-1913) as representative of the Historical School
Declaration of the Rights of Man and of the Citizen (1789)
= human and civil rights document based on the principles of natural law, freedom, inherent rights and equality. It was inspired by the Enlightenment and the American Declaration of Independence, initially drafted by Marquis Lafayette with the help of Thomas Jefferson.
Enlightenment
= an intellectual and cultural movement that emerged in the 17th and 18th centuries, emphasising reason, individualism, and skepticism of traditional authority, particularly the church and monarchy.
Foundation thinkers: Voltaire, John Locke, and Jean-Jacques Rousseau
