LAW AND THE VOLKSGEIST
83 From time to time, especially in connexion with Montesquieu and Savigny, reference has been made to theories that law is a product of the life of a nation, and the expression of the national spirit.
On the other hand there are the theories that law is or ought to be supra-national and related to human nature, and that a law confined within national frontiers is scandalous or even absurd (Pascal). What can legal history teach us about these two contrastÂing conceptions?The classic philosophical discussion of the Volksgeist is to be found in Hegel. For him, all the cultural manifestations of a people - its religion, institutions, morality, law, customs, science, art and crafts - are merely visible expressions of a central reality, the Volksgeist. Any serious study in any area will sooner or later reveal this central element of the national nature. In the nineteenth century this
,3 See his General view of a complete code of laws and his Book offallacies^ in Worksy ed. J. Bowring, π, πι (New York, 1962). conception was very popular, and it is clearly linked with the rise of the nation state, especially in Germany where, under French occupation, nationalistic sentiments developed rapidly. Yet theories about the national character of law are open to criticism. In the Middle Ages and early modern times, the idea that law had a national aspect was virtually unknown. The Roman and canonical models of law were supra-national or even universal; and, in spite of many local variations, the feudal law of all western countries also had a common basis. The prevailing view was therefore of a common law subject to local variation. In practice, national legal systems hardly existed in the Middle Ages, although they are to be found in England and Hungary. In early modern times there was a trend towards national laws, but its results were very incomplete, as is shown in particular by the case of France.
The correlation between nation and law was so undeveloped that at the end of the ancien regime France still had two great legal zones which were fundaÂmentally different. From the time of the homologation of customs onwards, it was clear that in law the geographical unit was the region rather than the nation.The speed with which national law developed depended on the individual political circumstances of each country. The strong monarchy in England favoured the very early development of a national law. By contrast Germany, which was divided from the thirteenth century, arrived at a national code only with unification at the end of the nineteenth century. France lies between these two extremes, since it was unified later than England, but earlier than Germany; still, the development of a national French law was slow and halting. A closer inspection of England reveals that the ComÂmon Law which developed so early has little to do with a Volksgeist, a â€?national spirit’ or whatever it may be called. The â€?typically English’ system is in fact nothing other than a continental feudal law, which was imported by the Norman conquerors, and has nothing to do with ancient traditions of the English people or Anglo-Saxon law. The developments in Germany and in Scotland in the sixteenth century also show how little the national law need have to do with the customs of a nation: both of these countries introduced the ius commune as their national law in order to make up for the deficiencies of custom.
Here it is also appropriate to consider the development of law in France and in Belgium. The Code civil of 1804 was a French code through and through, so the question arises whether, in the Belgian regions in which it was introduced, it represented a foreign element and a break with the national past.14 The answer is quite clearly no: French law (especially in the north) and â€?Belgian’ law had deÂveloped from common origins and over the centuries had followed parallel courses.
Until the sixteenth century most of the county of Flanders was legally part of France. All the essential (Germanic and Roman) ingredients - local and regional customs whether homoloÂgated or not, canon law, Roman law, the â€?books of law’ - were part of a common patrimony. The same applies to the political structures, which in both countries developed from the same feudal, urban and monarchical institutions. The introduction of the Code civil into Belgium was therefore not the abrupt imposition of a completely foreign legal system; Belgium was at the same stage of development, and codification was among the ideas of the Enlightenment which were being diffused throughout Europe.'5 Of course, not all rules of the Code civil corresponded to old Belgian customs, and it is interestÂing to note that recently in Belgium there have been occasional steps back to the customary law which the Code supplanted. The rights of the surviving spouse, for example, were much more extensive in the old law than under the Code civil, and modern Belgian legislation in this area represents a return to ancient custom.'6,< See the commentary in van Dievoet, Burgerlijk recht in Belgie en Nederland, 8-11.
's See the similar conclusion for the Netherlands in J. van Kan1 �Het burgerlijk wetboek en de Code civil’, Gedenkboek burgerlijk wetboek 1838-1038, ed. P. Scholten and E. M. Meiiers (Zwolle, 1938), 276.
'6 P. Godding, â€?Lignage et menage. Les droits du conjoint survivant dans Pancien droit beige’, Famille, droit et changement social dans les sociitis Contemporaines (Brussels, 1978; Bibliotheque de la Faculte de droit de PUniversite Catholique de Louvain, xι), 296; J. P. Levy, â€?Coup d’oeil historique d’ensemble sur la situation patrimoniale du conjoint survivant’, Etudes ojfertes d Reni Rodiere (Paris, 1982), 177-96.