FINAL CONSIDERATIONS

91 Historical research has succeeded in exploding the myths about law. It has destroyed old, time-honoured conceptions of law: that law is a body of rules decreed by an omniscient God and inscribed in the heart of man; or the product of wise decisions by venerable (but perhaps mythological)³³ ancestors; or a system deduced from the nature of society by men guided by reason.

» A. H. Huussen, â€?Le droit du manage au cours de la Revolution franςaise^,, Revue d’histoiredu droit 47 (1979), 9-52, 99-127.

M Arts. 229-30 are among the clearest instances of discrimination, since they provide that a husband can demand divorce on the ground of his wife’s adultery, while his wife can only do so if she has found her husband with his concubine in the matrimonial home. This discrimination was abolished in Belgium by art. 45 of the statute of 28 October 1974. In France, so far as divorce on grounds of adultery is concerned, the discrimination was removed by the statute of 27 July 1884 and the ordinance of 12 April 1945.

3s Many medieval law books, much later than the great legislator Charlemagne, were still attributed to him, e.g. the supposed �loi Charlemagne’ of Liege.

3⁶ The term is used by P. Koschaker, Europa und das rdmische Recht (Munich, 1947), 138, of the adoption of foreign legal systems.

3’ The term OfRudolfvonJhering and his school (see above, section 76). Cf. also the notion of Bentham, according to which all statutes have or ought to have the aim of augmenting the total happiness of the community, which means that law is (or ought to be) dictated by what best serves the community: Gerbenzon and Algra, Voortgangh, 260.

Yet lawyers ask themselves if this is an end of the matter, or whether some importance should not still be attached to permanent fundamental principles, which do not just depend on political circumstance or the actions of interested groups; in other words, whether there is a fixed star in the legal firmament. Even, for example, if the laws of Nuremberg had - formally - the force of law, they were undeniably the source of injustice. This reflexion leads to the desire for a body of stable rules, above and beyond changing statutes, and able to serve as a touchstone for assessing the validity of statutes - such, perhaps, as the constitutions and declarations of the rights of man. Lawyers also ask themselves not just about the role of law but about their own role in society. Here too historical research has played a demystifying role. It has shown that lawyers have often stood beside those who were powerful and well able to obtain the services of lawyers to plead their cases, compose their statutes or legitimate their claims. The point bears further examination. But at present the overwhelming impression is that the fee-earning lawyer has been a more frequent phenomenon than the revolutionary lawyer who stood up to those in power and defended the cause of the weak and the oppressed.³⁸ In law, then, the answers to two questions are among the most pressing demands of our time: what are the fundamental laws with which statutes ought to conform? How can we ensure that judges and advocates are independent and always ready to defend the law? Legal history allows these questions to be faced with the aid of human experience accumulated over several centuries.

5^β But we must beware of generalization. There were many judges who resisted considerable political pressure, by foreign occupiers among others, and many advocates who felt constrained to take the part of the oppressed, such as the young advocate Emest Staes, the hero of the popular novel of that name by the Flemish author Anton Bergmann (d. 1874): his first victory was his successful intervention in favour of a worker who was about to fall foul of art. 1781 of the Code civil (see above, section 6).