Precedents: The Experience of ConsoHdations
There were a number of legislative consolidations in Italy and in Europe. In the Kingdom of Sardinia (Piedmont, Liguria, and Sardinia; the capital was Turin), for example, “constitutions” were promulgated by Victor Amadeus II in 1723 and 1729 and by Charles Emmanuel III in 1770-71, the latter under the title “Laws and Consti-
ι.
“Consolidation” and “codification” are useful terms, now widely used for their clarity. They have also provided the title of a book that introduced the first term into juridical historiography and combined it with the second: Mario Viora, Consolidazioni e Codificazioni: Considerazioni suite Caratteristiche Strutturali delle fonti di Cognizione del diritto nei tempi andati, contributo olla storia della Codificazione, 3d ed. (Turin: Giapi- chelli, 1967). See also K. Pennington, “Law Codes: 1000-1500,” in Dictionary of the MiddleAges^ vol. 7 (1986) 425-31.2. Tulho Ascarelli, “L’idea di codice nel diritto privato e la funzione dell’interpreta- zione” (1945), now in AscareUi, Saggigiuridici (Milan: GiufFre, 1949), 48—49. tutions.”[3] The terms Costituzioni (constitutions) and codici (codes) were used interchangeably to designate the same phenomenon. This meaning persisted, to the point that even in our own century Vittorio Emanuele Orlando observed that “no objective difference exists between constitutional laws and ordinary laws,”[4] which means that even today “civil code” and “constitution” can be brought within “the broad process of codification,”[5] since the civil codes have incorporated “constitutions” and the concept of collections of legislative decrees within the meaning of “code.”[6]
There were also early experiments in codification. The Senate of Venice ordered a “Feudal Code,” drawn up in 1770 and promulgated in 1780, and another body of laws, the “Code for the Venetian Mercantile Marine,” in 1786. Activity was even more intense in Tuscany, where at least two attempts to draw up a code deserve mention.
The first, a project for a civil code (the “Code of the General Legislation of the Grand Duchy of Tuscany”) limited by an outdated point of view, was a failure; the second, a penal code, proved a great success. Formally entitled “Reform of Tuscan Criminal Legislation,” it is commonly known as the Leopoldine Code because it was sponsored and promulgated (in 1786) by Pietro Leopoldo, grand duke of Tuscany from 1765 to 1790 as Leopold I and after 1790 Holy Roman emperor as Leopold II.Outside of Italy, the most important instances of a sovereign using his or her authority to back the idea of codification and to make it a reality occurred in Austria and Prussia.
In Austria, after the failure of the “Codex Theresianum” of Maria Theresa, which was completed in 1766 but never put into effect, Joseph II brought out a “Rules of Civil Procedure” (Civilgerichtsord- nung) in 1782, followed by a penal code (Allgemeines Gesetz uber Verbrechen und derselben Bestrafung) in 1787 and a Code of Penal Procedure {Kriminalgerichtsordnung) in 1788.
In Prussia, which extended over the greater part of the territories of northeast Germany, jurists steeped in Enlightenment culture (Thomasius, Coccejus, Schwarz, and others) made a number of attempts during the eighteenth century to draw up or give support to a code. A stable, concrete code came only in 1794, when Frederick William II (d. 1797) promulgated the Allgemeines Landrecht fur die Preussischen Stouten (General Code for the Prussian States), commonly known as the Prussian Landrecht. It remained in force until 1900.
3.