Part 2: The Movement of Codifications From the Modern Times to the Comtemporary Period (Present day)

Question 1

What were the intellectual justifications for codifications?

Answer 1

Natural law
Unifying the law around of homogenous body of laws
Opposition of legal pluralism in Middle ages
Codification - a part of the intellectual evolution of Modern Times

Question 2

What was the revolution of Natural law? Which are the most important philosophers?

Answer 2

The starting point was Thomas Aquinas (1225-1274)
Natural law results from observation of nature created by God of christians
Man and woman can have relationships and children - marriage is a law of nature
Men have to complete the process to make secure the legal system that must follow human nature

Hugo Grotius (1589-1645) and a new jusnaturalism
New concept of natural law. Insisted on rational character of natural law - laws are extracted for individual reasoning but observing nature
Positive law must confirm
Core of natural law theories: individualism and subjective rights
Start of secularization of law = A revolution. Grotius argued natural law is valid even if god is denied

Modern natural law forms a complete and coherent system
Rights today derive from axioms (basic principles in natural law)
Like “One must refrain from harming the property of others” –> The right to property
Modern natural law = Hyperrationalism. Law conceived as an exact science

Question 3

How have French authors/philosophers had an impact on this Modern Natural law?

Answer 3

Scope of natural law: public law more then private law The new authors discussed the conception developed by Grotius
Human being the reason for humanity
Central idea: Clear, precise, simple law needed to reach justice
Critisism on legal pluralism

Montesquieu (1689-1755) Spirit of law (1748)
Refused to develop a doctrine on jusnaturalists
Tried to present different systems of society in the world. Main point was to critize, discuss classical idea of natural law, and maintain that is is impossible to know the laws of the nature
No general custom without taking account particular customs - they represent the spirit of French people

Voltaire (1694-1778)
Spoke of the barbarity of customs, critized the customs. A source of anarchy. Too many irrational customs
Law of evidence regarding customs is the reason why the codification was at stake

Rousseau (1712-1778)
Critised the classical idea of natural law and maintained that is it impossible to know the laws of nature
Need for three codes: Political code, civil code, criminal code
Codification is the best answer to imperatives of unity and simplicity

Diderot (1713-1784)

Question 4

Who was Gottfried Liebniz and what was his view on Codification?

Answer 4

German prominent figure (1646-1716) 17th century

Criticized legal pluralism. The uncertainty of law arising from laws and customs
Inadequency: The law not adequate to society. Not sufficient to solve problems of society
To be in adqualification - to be in present society

We need Codification - as a means to deal with legal pluralism
Required a simple codification with briefness and clarity. To apply law and general principles
To avoid misunderstandings and confusion for judges
The rest is up to judges to develop

Question 5

What were the Codifications in Europe in Early Modern Times?

Answer 5

Two main codifications established in XVIIth and XVIIIth centuries:
- Codification in Brandenburg-Prussia
- Codification in Austrian Monarchy
Two main codifications in XIXth century:
- French Napoleon codifications
- German codification

Question 6

How was the Holy Roman Empire of the Brandenburg Prussia like?

Answer 6

Weakness, no central government
Had to share legislative competences with Reichtag - the assembly of the delegates of the estates of the Empire - a difficult partner
Consolidation of the situation in famous Treaty of Westphalia (1648)

In 1806 the Emperor Francis II (1768-1835) decided that the situation was untenable and officially dissolved the Empire
The political fragmentation of Holy Roman Empire was reflected in administration of justice

Question 7

What were the situation of justice and legal sources in the Holy Roman Empire (Brandenburg-Prussia)

Answer 7

Legal pluralism: different statues and legal customs were in force in various regions and cities
Roman law acted as a subsidiary source of law, as most European countries
No hierachically organised judiciary
Creation of Reichkammergericht in Etzlar in 1495 but limited competences as a supreme court
Differences between Brandenburg-Prussia and Austria

Question 8

What was the political context of Brancenburg-Prussia?

Answer 8

Was a conglomerate of more or less independent territories united in a personal union under the reign of Hohenzollerns
In 1700 most important domains were Brandenburg and Prussia
Hohenzollerns were allowed to use title King in Prussia in 1701, and in 1707 they ruled about 1,6 million subjects
In previous century Frederick William (1620-1688) The Great Elector had already embarked a policy of Centralization. Hohenzollern continued the consolidation of central authority

In 1723, King Frederick William I (1657-1740) established the Generaldirektorium with many competences with regard to affairs of the interior
Administration of justice remained to local authorities
Regional identities remained stronger

About 1700, a Prussian Gesamtstaatidee, a sense that the various provinces belonged together, had barely developed.
Inhabitants who spoke German were favourable to such an idea.

The Seven Years’ War (1756-1763) as the immediate cause of patrionism defended by bourgeoisie

Question 9

What was the legal context of Brandenburg-Prussia?

Answer 9

Firstly, a failure to unify law.

Pursuit of a common law during reign of Frederick William I (1713-1740)
First attempt: the role of Christian Freidrich Barholdi, president of Supreme Court established in Berlin 1706

1712 proposal from another official to bring difficult cases before the King
1713 king ordered Barholdi to draft new regulations for the judiciary and a common law. Costs of lawsuits, legal uncertainty weakening financial situation and a risk for the state
Connection between administration of justice and Welfare state. Danish code as a model which consisted of uniform laws
But impossible to adopt the laws of Denmark. Because of the various territories enjoyed their own customs and statues, and a risk with abolishing provincial laws
Bartholdi concluded a narrow reform in procedural law which was abandoned

In 1714 he commissioned the University of Halle to draft a common law for Brandenburg. The draft of 1733 never came into force.
In Prussia - A similar project turned out successful, introduction of a revised common law in 1721, but it reinforced provincial law

Secondly, a renewed attempt to introducing a common law (1733-1740)
King appointed Samuel von Cocceji as Groskanzler, or Lord Chancellor. Submitted two memoranda in 1737. Advocated for Allgemeines Landrecht - common law for entire state
But king did not want unity of laws, he wanted the law of provinces to remain in force. The new code was to replace Roman law

Question 10

What was the Silesian common law in Brandenburg-Prussia?

Answer 10

A proposal and draft of Codification
Frederick II first showed little interest in reforming the justice
Conquest of Silesia: First Silesian War til 1742: Treaty of peace signed in Berlin

End of 1741 Frederick II started to reorganise the government of the newly acquired territories
Cocceji was ordered to undertake the reform of the administration of justice
Dec 1741 conference with Silesian Estates: Judicial system as one of the pillars of the State

Cocceji defended a reform of substantive law in connection with both memoranda (1737)
With introduction of a Silesian common law, struggle against confusion, and he was against customary law as an autonomous source of law
Silesian state accepted to coopeate
Frederick from 1741 onwards wanted to extend codification to his entire state

Question 11

What was Coccejis proposal av german common law?

Answer 11

July 1743, Cocceji presented the reasons for codification
Proposal to introduce a common law for the entire Prussian state, associating the provincial Estates to the process
Exclusive codification, abolition of other laws
Goals: Legal unity, security and certainty of laws
Kings position: Pragmatism and prudence, obstacles - second Silesian war
Cocceji was asked to make a new proposal. Disorder caused by amalgam of Roman law, canonical law, local german laws. Because uncertainty, lenghty, costly procedures. Defence for a german common law

Question 12

What was Cocceji’s draft? Was it a success?

Answer 12

Project Corpus Juris Pridericiani
1749 and 1761 Two volumes: Law of property, family law, law of inhertitence
Purpose: Reduction of lawsuits, end of chaotic legislation, autodetermination of legal situation for all citizens
Exclusive codification, no more roman law as subsidiary source of law
Impossible to refer to scholar’s opinions
Cocceji had an obligation to draft a universal systema applicable to all Prussian provinces

One year granted to the provinces to hand in laws and privileges they wanted to retain. Possible confirmation by the king. Otherwise abolished
The new prussian code a sole source of law

Tried to convince representatives of local and provincial law

Content of the draft: Greater part of provisions of roman law put in systematic order. No domestic german law because of their disuse and weakness

Failure, Cocceji died and his draft faded away

Question 13

What were the obstacles to such a codification like Cocceji’s?

Answer 13

Third Silesian War in 1756, possible opposition of Provinces
Too much based on roman law
Too much legal unity against local laws

Question 14

How was the ALR (Allgemeine Landsrecht) introduced?

Answer 14

A resolution of Frederick II to codify Prussian law
New attempt Johann Heinrich Casimir Carmer
Carmer had carried out successfull substantial law reforms in that province

A meeting for the form of administration of justice
Ideas of Carmer: Uniformity of legislation
4 april 1780 Carmer submitted his proposal for refrom
He suggested preparing a new code. Corpus Juris did not meet present requirements
Purpose: to reduce the number of lawsuits
King’s position: Yes for such a codification, no for legal unity. Every province should have laws suited to their specific circumstances

14 April 1780 King ordered Carmer to establish a codification committe. for advantages and disadvantages with provincial laws
27 july 1780 new decree of king aim at specifying content of provincial codes - Carmer coordinator of project
Many opponents to this codification

Question 15

What was the struggle with introducing ALR?

Answer 15

The codification was seen as the King as a subsidiary force, supplementary to the provincial codes
The Estates played a role in the process. They were now allowed to comment on the drafts for common Prussian law

Frederick II died and Frederick William II was his successor

Opposition to the codification: Freidrich Ludwig Kark Fink von Finkenstein
Said the estates would need as least 2 years to prepare their comments. This opposition failed though.

And the result was Allgemeines Gesetzbuch or ABG

Question 16

What was The Patent?

Answer 16

A decree issued at the occasion of the publication of the code (ABG/ALR?) on its content
The purpose of the code: Putting a rational order on principles of natural law written in German

Question 17

Why was the introduction or the ALR postponed yet again? (after the Patent)

Answer 17

A new opposition appeared to the codification - influence of conservative official on the king. Inappropriate constitutional limitations on the king
Discussion and letter between Carmer and Fink about interest of provinces

Because of intervention of the Estates of Brandenburg, the ALR was postponed
Then new interest of the code

1793, new interest in introduction of the code
- various judicial bodies had started to use the code, because practical-political nature, the Polish situation
- It was seen as an opportunity to reorganise the newly acquired domains and bring them more in line with old provinces

June 1794, the Code went into force as Allgemeine Landrecht (ALR) - it was introduced without the provincial codes being ready
Many provincial estates were reluctant to prepare a provincial code

Succesor of Carmer, Heinrich Julius Goldberg refused it be seen as a part of provincial law

Question 18

What happened after the reluctance to introduce the ALR?

Answer 18

In 1805, the negotiations between government and Estates were broken off
1806, the Prussian state collapsed under the Napoleonic armies
ALR gradually attained exclusive force in most territories that remained Prussian
Provincial law was relegated to subsidiary force of law

Some attempts to counter this development by proposing introduction of provincial codes. Only successful in West Prussia

A situation where territories were controlled by France

Question 19

What is the Political context of Codification in the Austrian Monarchy?

Answer 19

In 1700, the Austrian Monarchy was a conglomerate of three or less independent territories united in a personal union under the Habsburgs
They were Archduke of Austria, king of Bohemia and Hungary, Emperor or Holy Roman Empire
Estates did not have power to choose another Duke

Domains
- Archduchy of Austria, most important, which the Habsburg had ruled since end of 14th century
- Territories that belonged to Bohemian Crown: Bohemia, Moravia, Silesia.
- Difficuly to integrate the new acquired territories into the Empire, especially Czech ones

1627: Constitutional change
The three domains were governed under different titles - Detrimental for common institutions

Vain efforts of Charles VI (1685-1740). Attempt to introduce similar rules of succession in all his territories
After his accession to the throne - Maria Theresa (1717-1780), focus shifted from Holy Roman Empire to permanently the Austrian Monarchy

Diversity of cultures in Austrian Monarchy. Shared a common interest: struggle against the Turks. Lead to general assembly of the Estates

Question 20

What was the Legal context of the Austrian Monarchy?

Answer 20

Importance of efficient administration of justice in the central power
Proposal for uniform law in private field. 1706 report that monarchy would benefit from unity
“One king, one people, one law”
In Hofkammer, Cristian Julius Schierl von Schierendorff proposed concrete reforms in public and private law
King shoudl encourage agriculture, trade and industry
Constitutional proposal. Same rules of succession to throne, unify privileges of provinces, need for a supreme court

Question 21

What did Maria Theresa do after the the death of Charles VI?

Answer 21

The decision to make fundamental administrative reforms
- Invasion of Silesia had consequences. Maria Theresa was convinced the crisis had roots in lack of cohesion between various regions of her state
Some proposals to strengthen power of monarch at the expense of regional estates. Large opposition

• New administrative bodies: Politische Landesstellen or Gubernia which the monarch controlled
• Establishment of a codification committe or the Austrian Succession States, 1753
  With cretaion of a Supreme court, application of provincial laws
  Revival of codification committes, but change with vice-president of Supreme Court Otto Frankenberg. He controlled it
  For unification and legal unity through anonymous work

Question 22

Who worked on the Codex Theresianus? (1753-1766)

Answer 22

The Kompilationskommission
Order to draft a uniform codification. For interest of litigants. Getting states closer together
Limited to private law
Inspiration from natural law

Question 23

What was the obstacles and results of The Kompilationskommission? What took over?

Answer 23

Joseph Azzoni and Joseph Ferdinand Holger were ordered to revise the draft.
Around 1760 the monarchy faced many problems: a new phasis of Silesian War and the discussed centralization of power
In 1766 the Codex was submitted to Maria Theresa

The Patent which accompanied the promulgation of the Codex provided some argument in favor of a new code. Bad with uncertainty, obscurity, diversity of existing laws

He reorganized the Gesetzbungskommission to be in charge of work on the Codex. It yielded results for fist time. Also on family law
Came into force 1 Jan 1787 as Josephinische Gesetzbuch (JBG) in the Austrian Succession States. Complete exclusive force

Question 24

What was the Codification during the reign of Leopold II like? (1790-1792)

Answer 24

Joseph II died, succeeded by Leopold II
Different approach
Karl Anton Martini (1726-1800) new chairman of the commission
New committe suggested reconsidering provisions of the JBG which already had force of law
Evaluation of difficulties with enforcement

Question 25

What was the Codification like during the reign of Francis II? (1792-1811)

Answer 25

Succeded Leopold II
Named himself Francis I of Austria after dissolution of the Holy Roman Empire in 1806

Codification process completely successfully with introduction of the ABGB in 1811
(also called Westgalizisches WGGB)
Took effect in both East and West Galicia

Process of the proposal:
20 Nov 1796, Francis II accepts proposal
1801 Discussions on draft
Franz von Zeiller one of the most important officials. Codification instrument for legal unity
Came into force after a long process
1 june 1811, the Patent argued that the new code should provide citizens with certainty about their rights to private law
Complete, well-oredered, published in German. Patent emphasied exclusivity of the new code

Question 26

What was the aim of ABGB/WGGB?

Answer 26

Sent to various provincial institutions for advice. Legal unity was the ultimate aim
Estates wanted two things: Taking part in preparation and respect of old customary laws
Use of French revolution to centralize and unify administration

Citizens should be able to know their rights and duties without lawyers. Clear, succinct provisions, systematic, based on legal principles, written in German
Provincial laws allowed if circumstances in provinces are differet
Climate, religion, traditions, morality, form of government influenced the content of law

Question 27

What were the Codifications in France in the early contemporary period like? In regards to the political context?

Answer 27

During the Ancient France:
Word France from latin Francia by French King Philip Augustus
Treaty of Verda 1843 dividing western part of Europe into 3 parts: France, Italy, Germany

During the French Revolution:
June 1789 Assemblé constituante was created
4th August: they decided to end the feodal system
Declaration des droits de l’Homme et du citoyen (1789 26 august)
Constitution enacted on 3 sep 1791 and different political regimes followed
New administrative organisation and judiciary. Centralization of norms and hierarchy of norms. Based on Rousseau Le contrat social - statute law is the general will of population

New constitution: Convention nationale
Regime of Terreur after suspension of constitutional order after threat of general war in Europe
Nov 1799, coup d’Etat by General Bonaparte
New regime: the Consultate and the Premier Empire

Question 28

What was the legal context of Codifications in France during early contemporary period? Of ancient droit?

Answer 28

French Kingdom was characterised by legal pluralism
Legal diversity, different sources of law: Customs, ordinances of king, judicial decisions, legal doctrine
Problems like costs and length of lawsuits, lack of competences of the magistrates, difficulty to prove content of customs
Lead to King Charles VII ti impose official editing of customs in ordinance of Montilz les Tours (1454)

Problems with disunity, discussed in Estates General
New phasis of discussion under reign of Louis XIV
Colbert reforming the royal ordinances, ordonnances
Ordonnances de codification = Movement of codification in limited fields

Question 29

What was the legal context of Codifications in France during early contemporary period? Of The Droit intermédiaire?

Answer 29

New principles in law - DDHC: Freedom, egality, fraternity
Mirabeau working on the Constitution
Constitution enacted on 3 sep 1791
“A code of civil laws common to the whole Kingdom shall be drawn up”

Question 30

What were the three projects of Cambacérès in France during the early contemporary period?

Answer 30

Camberes born in Montpeiller
During Revolution a moderate republican
Presented the first official draft of a codification to the Convention on behalf of the comité de la legislation
Goal was legal unity
Wanted to replace the old legislation by a code of law easy to understand

First draft was too short and theoretical, without a philosophical perspective
Second draft too succinct and philosophical
Third draft. Only stated that uncertainty in matters of civil law and political matters was detrimental to the state

Question 31

What was the Napolenic codification like?

Answer 31

By decree 12 August 1800, Bonaparte appointed four lawyers as members of new codification committee
Francois-denis Tronchet
Felix-Julien-Jean Bigot-Prameneu
Jean-Etienne Portalis
Jacques Maleville

Napoleon wanted the code to bring legal unity
Good government required uniformity
Jan 1801: Draft was ready
Tree books with internal divisions of 2281 provisions
Deliberations between members of committe and Conseil d’Etat. Then into assemblies with debate on provisions
Conservative character of the code. Style was clear, precise and rigorous

1804 First real Civil code divided into 3 books: First dealt with persons, second with property, third will ways of acquiring property
1806 Civil procedure code
1807 Commercial code
1808 Criminal procedure code
1810 Criminal code

Applied in France and other country because of military reasons and the conquered territories, and because of the scientific reasons, style and quality of the code.

Question 32

What was the political context of the Codification in the German Empire?

Answer 32

1806 Fall of Holy Roman Empire
Congress of Vienna 1815 after Victory against France. Important for international relationships

1866 War broke out between Austria and Prussia
Therefore. German confideration created, also fear of revenge from French armies
1870 War between France and Prussia. Victory of Prussia
–> German empire came into force on 18th Jan 1871. Proclamation of King William 1st of Prussia as German Emperor

Question 33

What was the Legal context of the Codification in the German Empire?

Answer 33

Codification in the German territories had been debated since 1814
Famous opposition between two jurists:
- Anton Justus Freidrich Thibut On the necessity of a general Civil Law for Germany - wanted application of customs
- Carl Von Savani Pondectism - old roman law as positive law

Question 34

How was the BGB (German Civil Code) introduced?

Answer 34

A first commission for codification
Chaired by Heinrich Edward von Pipi
Composed of 9 judges and civil servants and 2 scholars including Bernand Vindchard
Inspired by doctrine of Savani and principles by Bernand Vindchard
Therefore this first version of German civil code was called The Little Vindchard
Draft was critized. Ignored social issues, conservative, non-german, roman, too complex

Therefore, a second comission created
22 members, not only lawyers but representives from financial sector etc
A third version adopted resulted in the German Civil Code BGB on 18th August 1896

Question 35

What was the structure and content of the BGB?

Answer 35

Divided into 5 books
1. General principles
2. The law of obligations
3. Law of property
4. Family law
5. The law of succession

Based on principle of Private Autnomy - each persons involved in private law relationships must be equal and thus have different freedoms
1. Freedom of contract
2. Freedom to certify
3. Freedom to conclude contracts
4. Freedom of resign and refuse