BELGIUM AND THE NETHERLANDS

75 In 1795 the French Republic annexed the Austrian Nether­lands and the principality of Liege, which as a result became subject to French law and to the Napoleonic codes in particular.

One of the first questions for the new state to answer was what to do about the existing French codes. A solution was swiftly reached in principle, although in practice it required time to implement: the new kingdom would have new national codes. The decision was only to be expected, since codifications were a la mode, and each sovereign state was supposed to have its own codified national law. In April 1814, even before the union of Belgium and the Netherlands, William I set up a commission for national legislation (Commisie tot de nationale wetgeving) to prepare new codes appropriate to the customs of the people of the Netherlands, and inspired by the traditional doctrine of the Netherlands. After 1815 efforts were made in Belgium as well as Holland to carry out the project.

In spite of these difficulties, and in spite of personal opposition between the rather doctrinaire DutchjuristJohan Melchior Kemper (d. 1824) and the Belgian magistrate and practitioner Pierre Thomas Nicolai (d. 1836), the preparatory works did manage to arrive at acceptable results, and by 1829 four codes were complete, including the Code civil, which was a decided compromise between north and south." They were intended to come into force on 1 February 1831, but the Belgian revolution disrupted the plan. Its result was that in Belgium the Napoleonic codes were maintained, and in 1838 the Netherlands promulgated their own civil code, which was essentially the 1804 Code civil adapted on the basis of the work done by Kemper and Nicolai.

The new kingdom of Belgium felt obliged, however, like all other kingdoms, to promulgate its own codes, and this was actually set down as a principle in the Constitution (art. 139). But a new Belgian civil code was never realized, all the attempts at wholesale revision of the French Code civil having failed. This is why five-sixths of the original Code civil are still in force in Belgium.¹² In spite of frequent recent changes to the Code, particularly in the areas of family law, matrimonial regimes and succession, there is no such thing as a new Belgian civil code.'³ In the Netherlands, on the other hand, it was decided after the Second World War to introduce a new civil code.

For Belgium, the effect of this development on legal scholarship can easily be summed up: Belgium was a colony of the French School of Exegesis. The Belgian exegetes are distinguished only by their extremism, and by the fact that they adhered to the exegetical method much longer than the French themselves. The dominant

" The other codes were of commerce, civil procedure, and criminal procedure. ^,* By 1976 about 400 of the 2,281 articles of the 1804 Code civil had been changed. ^,3 In 1976 more than 200 new articles were introduced by the statute of 14 July on the rights and duties of spouses and on matrimonial regimes. New criminal (1867) and judicial (.1967) codes have, however, been produced.

'« The nine books deal with: I, the law of persons and the family; π, legal persons; πι, the law of property in general; ιv, succession; v, real rights; vι, obligations in general; vπ, particular contracts; vιιι, sea, river and air rights; ιx, intellectual property. figure in nineteenth-century Belgian jurisprudence, and the only Belgianjurist of repute in France and internationally, was Franςois Laurent (d. 1887), a professor at Ghent. As a lawyer, historian and politician, he was deeply involved in the problems of his time. Politically, he was a liberal and fiercely anti-clerical.¹⁵ In 1836 he was appointed to the chair at Ghent, where he taught a remarkable range of legal subjects for forty years.

It was also in Belgium, and in Ghent in particular, that the School of Exegesis survived the longest. Thus the very successful Beginselen van Burgerlijk Recht (â€?Principles of civil law’) by the Ghent professor A. Kluyskens (J. 1956) still bears the clear stamp of exegesis,'⁶ which is all the more remarkable as a new method (the â€?Scientific School’) had grown up in France around 1900 and had also spread into Belgium. This was largely due to the work of the Brussels professor H. de Page (d. 1969) who wrote a very influential Traite elementaire de droit civil, which appeared from 1933, latterly in collaboration with R. Dekkers (d. 1976), a professor in Brussels and Ghent. One of the first Belgian authors to attack the exegetical method was Edmond Picard (d. 1924), a progressive advocate and socialist senator who regarded law as a â€?social phenomenon’ which must be studied without â€?pedantic erudition’ (Le Droit pur. Cours d^,encyclopedic du droit, 1899). Professor Jean Dabin (d. 1971) was another lawyer who reacted against the School of Exegesis, more on ideological than sociological grounds.'⁷

In the Netherlands, the School of Exegesis never acquired the

's His Histoire du droit des gms, Iaterentitled HistoiredeFhumanite {ι⅛ vols., 1850-70), was so anti­Catholic that it was put on the Index librorum prohibitorum in 1857.

^,6 i, De Verbintentssen (â€?obligations’; 1925, 5th edn 1948); π, DeErfenissen (â€?succession’; 1927,5th edn 1954); πι, De Schentangen m Testammtm (â€?gifts and wills’; 1930, 4th edn 1955); ιv, De Contractm (â€?contracts’; 1934, 2nd edn 1952); v, tζakmrecht (â€?property’; 1936, 4th edn 1953); vι, Voorrechtm m Hypothekm (â€?ranking and securities’; 1939, 2nd edn 1951); vπ, Personm- m Familierecht (â€?persons and family law’; 1942, 2nd edn 1950); vπι, Het Iiuwelijkscontract (â€?the contract of marriage’; 1945, 2nd edn 1950).

'» See his Philosophie de Fordre juridique positif (1929) and Technique de Ftlaboration du droit positif (¹935)∙

doctrinal near-monopoly which it had had in Belgium. In any case, jurisprudence in the Netherlands was not influenced exclusively by French thought: German thought, especially the Pandectist and Historical Schools (which went more or less unnoticed in Belgium), had a greater influence there.

GERMANY

76 The German empire acquired its code only in 1900. There were various reasons for the delay. Political events were of course decisive: the political conditions necessary for the introduction of a national code were not satisfied while Germany remained fragmented into kingdoms, principalities and free cities. Some regions-such as the kingdom of Saxony in 1863 - promulgated their own codes. Other, more westerly, regions retained the French codes. There were those in favour of introducing the French codes throughout German territory, in order to provide a modern, common law. (This had been done in Russia, where the Code de procedure civile of 1806 was introduced.) Yet political objections prevailed against the introduc­tion of the codes of France, the old enemy and occupier, against which the whole German nation had so patriotically conducted its war of independence.’⁸ When Germany was unified in 1871, although the old states did not disappear, political circumstances were distinctly more favourable, and there was a pronounced feeling that the new empire should have its own codes. In 1877 a code of civil procedure (,Reichscivilprocessordnung') was completed, and came into force on 1 January 1879. It took longer to work out a civil code: that was promulgated in 1896 and came into force in 1900. For economic reasons it had already been necessary to unify commercial law: in 1862 the principal states had adopted a general statute on German commerce, which was extended to the union of northern Germany in 1869, and in 1871 became general to the German empire.

The problems were not only political. There were ideological problems too, especially the objections of principle raised by

^,∙ Savigny had stipulated that, if a German code was to be compiled, it must originate from the German people, and not be adopted from a nation which had shortly before threatened the ruin of Germany. For similar national and political reasons, the intended adoption of the Code civil in Russia was prevented by the Tsar.

Savigny^,s Historical School.'® The polemic between the proponents and opponents of codification (like that between Romanists and Germanists) divided German legal practice throughout the nine­teenth century. Even if the principle of German codification was accepted, the question still remained what sources should be employed in such a codification. It immediately became clear that the codes of the new German empire would not be innovative, let alone revolutionary: they would be traditional, and not much orientated towards the future. The next question was on what past and what tradition they should be based. The influence of the Historical School managed to rule natural law out of order, and only a legal system which had actually been in force in Germany came into consideration. There were two possibilities. The first was the learned law as �received’ in Germany from around 1500: this was Savigny’s choice. It had been greatly developed and systematized by the School OfPandectists under Bernhard Windscheid, which could point to the facts that over the centuries gemeines Recht had become completely integrated into Germany, and that its system was intrinsically superior.

The second possibility was ancient Germanic or German law. In the nationalistic spirit of the time, this had been rediscovered and had been the object of important scholarly studies. K. F. Eichhorn (rf. 1854)^{20 a}∏d J∙ Grimm (d. 1863)²¹ were the leaders of the Germanists. They regarded old Germanic law as the only possible basis for a true national law of the German people (a Volksrecht rather than a Professorenrecht). The dispute was essentially a political one which, in the face of any academic rationality, divided German legal historians in the nineteenth century into two opposed camps. German public opinion was nationalistic or even xenophobic: it favoured the Germanists. But the Romanists could plead that Pandektenrecht was much more sophisticated and more modern than the law of Germanic antiquity or the Middle Ages.

It is not altogether surprising that the code which eventually resulted bore clear signs of pandectist method, although these had been even more marked in the first draft. It is unnecessary to enter

^,s See above, section 72.

²⁰ Author of a Deutsche Rechls- und Stcuitsgeschichte (1808) and of an EMeitung in das deutsche Prwatrecht (1823).

²' Author of Deutsche Rechtsalterthumer (from 1823). He was a distinguished linguist and one of the founders of German philology.

the labyrinth of all the commissions whose works from 1873 onwards contributed to compilation of the Biirgerliches Gesetzbuch. Suffice it to note that the final text was adopted by the Reichstag and promul­gated in 1896, and that it came into force on 1 January 1900. Some non-lawyers, people of distinction in politics and economics, had been asked to join the commissions, but the BGB was above all the work Ofprofessional lawyers (their views readily prevailed over those of the lay members), and still more the work of academic lawyers rather than judges. The main academic contributor to the prepara­tory works to the BGB was the eminent pandectist Bernhard Windscheid.^[29]

The BGB is a very systematic and theoretically coherent code, entirely in the spirit of the pandectists, as its important Allgemeiner Teil (�General Part’) shows. It was the work of academic lawyers addressing themselves to learned judges; their aim was not to disseminate knowledge of the law among the people, although that did not prevent a lively popular interest in the code. An example of the systematic structure of the BGB, and the manner in which it moves from general principles to specific rules, is provided by the contract of sale. First it is necessary to consult the Allgemeiner Teil (art. 116 and following, art. 145 and following), then the articles on the general principles of obligations (art. 275 and following), next the general principles of contractual obligations (art. 305 and following), and finally the articles on the contract of sale in particular (art. 433 and following).

The BGB is typical of the nineteenth century; the fact that it came into force in the last year of that century is symbolic. It is a code which bears the stamp of individualism: its family law is patriarchal (the husband is head of the family including his wife, and he alone is responsible for administering family property); freedom of contract is absolute,^[30] and so is the right to private property.^[31] In spite of that, and in spite of Nazi intentions of introducing a Volksgesetz- bitch,the BGB has proved to be a stable code, and its outstanding professional craftsmanship has secured it great influence abroad?⁶

In the nineteenth century German jurisprudence reached its zenith, both in the development of legal doctrine and in the history and philosophy of law. Its influence was felt in all countries and all areas of law. The technical quality and range of German learning were admired: the advances made by Romanists in the nineteenth century completely transformed understanding of ancient law; the pandectists developed gemeines Recht to an unequalled degree of systematization; at the same time pioneering work in medieval Germanic law was carried out, which is still of value today. Legal scholarship had a profound influence on the practice of law. Since no single code applied throughout German territory, scholarship was the principal means of interpreting the learned law, mainly by the issue of binding opinions (Gutachteri) by the faculties of law to the courts.^[32]’

German civilian doctrine was fundamentally different from the French School of Exegesis in substance as well as method. But the traditional middle-class lawyers of the two countries shared an essentially conservative and text-orientated approach. It was pre­cisely this which provoked a violent reaction in Germany in the second half of the nineteenth century. The revolutionaries who called the prevailing doctrine into question did not see law as an academic exercise consisting of elaborating and refining legal con­cepts. They saw it as a struggle between opposing forces and interests. For them, law was above all a social product and a tool for social action, rather than the privileged domain of learned jurists; their doctrine is known as Interessenjurisprudenz, as opposed to the traditional Begriffsjurisprudenz.²⁶ It was necessary therefore to estab­lish what social objectives were to be achieved with the aid of the law: hence the title of the radical work by Rudolf von Jhering (rf. 1892), Der Zweck im Recht (1877)²⁹ and its motto â€?Purpose is the creator of all law.’ VonJhering had himself begun as a traditional Romanist, but he became dissatisfied with abstract logical reasoning and involved in the social problems of his time, and this led him to develop his own concept of law. His evolution can be followed through the various editions of his outstanding Geist des rδmischen Rechts auf den Verschiedenen Stufen seiner Entwicklung (1852-65),³⁰ in which a sociological approach to ancient law becomes increasingly prominent. His Der Kampf ums Recht (1872)³¹ caused a sensation by presenting law explicitly as the object of a struggle for collective interests and for power, and so, ultimately, as the result of political forces. This analysis was an inevitable conclusion from legal positi­vism: for, if statute was the sole source of law (and all reference to a superior order such as natural law had been disposed of), it necessarily followed that law was the instrument of the forces which dominated the state and its legislative organs.³²