THE CODES OF THE ENLIGHTENMENT
64 Legislation, and national codes in particular, were the means of putting the conceptions of the law of reason into practice.’4 Two different political regimes were responsible for promulgating modern codes: government by enlightened despots, and the French Revolution.
For the first, modernization was the deliberate policy of emperors, kings, and high officials won over to new ideas. From time to time their policy of modernization came up against the conservaÂtism of the people, and prevailed only through the efforts of a cultivated and progressive official elite. In the Austrian Netherlands, the rational reforms of Joseph II actually provoked a national conservative uprising, known as the Brabanςon Revolution. Policies of modernization were conducted in Germany, Austria, Tuscany, in Naples, Russia, Portugal, and in the Scandinavian countries, as well as in the southern Netherlands. Yet in France the Enlightenment produced philosophers, but it did not produce any enlightened kings. There it was a revolutionary people which broke with the ancien regime, and it was with popular support that modern ideas were imposed. In either case the result was the same: the promulgaÂtion of great codes composed by small groups of eminent lawyers. They would dominate the middle-class society of the nineteenth century.â€?JLike Pope Gregory VII in the eleventh century, the modern reformers counted on legislation to achieve their political ends; and they were hostile to rival sources of law, such as custom and case law. In their view the public good depended entirely on codes, and reliance on custom betrayed a lack of confidence in social progress. Judges, they believed, ought not to compete with the legislator, and ought not to apply statutes restrictively on the pretext of respecting fundamental unwritten principles. The role of the judge was deliberÂately reduced to acting as the â€?mouth of the law’.
Otherwise all efforts at codification would have been in vain; and the aim of legal certainty would have been endangered by judges making decisions'4 Case law played a very small part, since the courts followed a very conservative line. As we shall see (section 65), the role of universities was also limited.
,* This is clear for the codes of absolutism, although the people were sometimes consulted, but also for the Code civil of 1804. It was the work of a general who had dictatorial power, and a small group of experienced and learned lawyers; institutions representative of the nation had no real opportunity to contribute or participate in its composition. according to personal convictions.'6 Competition from jurispruÂdence was also not tolerated: there must be an end to subtleties and quibbles, which could only confuse the perfect clarity of the codes and make them, in the end, incomprehensible to the citizens. Emperors and kings were happy to pronounce prohibitions on commentaries on the codes, or other restrictive measures. LegislaÂtion, on the other hand, was elevated to the rank ofâ€?science’.'?
The first important code of the period was the Codex Bavaricus civilis of the Elector MaxJoseph III of Bavaria, which was promulÂgated in German in 1756. It was the work of W. A. von Kreittmayr (d. 1790), who had studied in Germany and the Netherlands and had practised in the imperial chamber of justice. The Bavarian code was a substantial codification, but still followed the tradition of according a supplementary role to the ius commune. Codifications in Prussia and Austria went further: every disposition outside the codes was abrogated, and Converselyjudges could not refuse to apply new dispositions on the ground that they had not previously been in force. (This was stated expressly in the letters patent which ordered the publication in 1721 of a revised version of the old Prussian law, entitled Verbessertes Landrecht des Kdnigreiches Preussen.)
In 1738 Frederick William I had ordered the preparation of a general book of laws for Prussia.
It was to be based on Roman law [Allgemeines Gesetzbuch gegriindet auf das rdmische Recht'). In 1746, however, Samuel von Cocceji (d. 1755) was entrusted by Frederick II the Great, a friend of Voltaire, with compiling â€?a general codification of German law based solely on reason and on national laws’ [bloss auf die Vernunfft und Landesverfassungen gegrundetes Teutsches Allgemeines Landrecht). This was a fundamental change of direction, as is confirmed by a pejorative reference to â€?uncertain Latin-Roman law’ and by an express prohibition on all commentaries, in order to prevent any interpretation by professors or advocates.18 Cocceji was ,6 Francis Bacon (and the emperor was now replaced by the sovereignty of nation states which, large or small, set out their own legal order in national codes. Countries whose political unity came late were also the last to acquire their national codes: Italy acquired its Codice civile only in1865, and Germany its BGB in 1900. National governments hoped that national codes would give them firm control on legal developÂment: that had always been obscure and elusive, but central authorities were now in a position to take charge. The new legal order spelt the end for the diverse sources of law as well as for the various jurisdictions (the special competence of the church courts, for instance, which had been recognized in certain cases by the secular authorities).
Another significant political development was that the task of the state was now regarded as being to ensure the common good of its citizens, not the glory of God, the protection of the church or the power of dynasties. In countries governed by enlightened despots, this task was reserved to the sovereign (hence the adage â€?everything for the people, nothing by the people’). This conception stands out particularly clearly in the Josephinisches Gesetzbuch of 1786 (ι.ι): â€?Every subject expects that his sovereign will assure him security and protection. It is thus the duty of the sovereign to lay down the rights of his subjects clearly, and to order their actions for the sake of the common and the individual good.’ So in Germanic lands the citizens were the product of the law, whereas in France the law was the product of the citizens, for there the law derived not from a sovereign but from the volonte generale (â€?common will’).20 The authorities now had the political will to give the people the rights which it had lost through the intervention of learned lawyers and their proclivity for treating legal affairs in camera.
Economic considerations also played an important part. Modern codes responded to the demands of a confident and enterprising middle class: demands such as individual freedom and responsibility, the abolition of feudal barriers and discrimination (restrictions on alienation of land, corporatism, privileges of the â€?orders’, mortÂmain). The economic premisses of some legal arguments can also be easily identified. So, for instance, Holland in the seventeenth century was a small nation whose prosperity depended above all on comÂmerce with overseas countries. It was no coincidence, then, if Grotius concluded that freedom of the seas was a principle of natural law.21
” â€?La Ioi est !’expression de la volonte generale’: Declaration des droits de I’homme et du citoyen of 1789, repeated in art. 6 of the Constitution of 1791. See also t. πι art. 2 of this Constitution, â€?The State, from which alone all powers derive, cannot exercise them by delegation’ and art. 3 â€?There is no authority in France above that of the law.’
” Grotius was prompted to write his Mare liberum (1609) by Spanish and Portuguese claims to a monopoly of colonial commerce. Portugal was from 1581 to 1640 a dependency of Spain. John Selden (d. 1654), an English lawyer at a time when England was beginning to assert its maritime hegemony, defended the opposite thesis in his Mare clausum of 1653. This was two years after Cromwell’s Act of Navigation, which restricted commercial traffic to England to the English fleet. Another example is the abundant legislation on land and mortgages which was introduced at the instance of the Third Estate during the first years of the French Revolution, and aimed to free feudal and church land and so permit its use within the system of credit.22 It would, however, be inÂaccurate to suggest a direct link between the great French codes and the Industrial Revolution, since that reached the continent long after the first attempts at codification, and even after the codes had already been promulgated.
None the less, the law of these modern codifications proved itself to be perfectly adapted to the needs of the capitalist, middle-class economy of the nineteenth century.Finally, it is worth noting the importance of intellectual factors. The philosophy of the Enlightenment rejected old dogmas and traditions (especially religious ones) and placed man and his wellÂbeing at the centre of its concerns. The change of attitude was partly caused by the influence of modern science: its new conception of a universe dominated by measurable elements, and laws of physics which could be logically proved, had replaced the old cosmology with its spirits and celestial circles. The eighteenth-century method of natural law is characterized by precise and exact deduction from set axioms, just like mathematics. The approach was clearly inspired by Descartes’s Discours de la methode (1637), the Philosophiae naturalis principia mathematica of Newton (1687) and Spinoza’s Ethica more geometrico demonstrata (published posthumously in 1677).23 AccordÂing to the new conceptions, man and society were part of an intelligible universe ruled by the laws of nature. The idea of a being created in the image of God and placed above nature was now excluded from scientific discourse.
The universities played only a secondary role in this period,
,2 In the Decree of 5—12 June 1791, art. 1 of the Code rural, t.t s.ι states that â€?the territory of France in its entire extent is free like the people who inhabit it’. See the volume La Revolution et la propriety Jmcilre (Paris, 1958) in M. Garaud, Histoire genlτale du droit privi Jranfais (from 1789 to 1804).
13 D. von Stephanitz, Exakte WissenschaJt und Rechl. Der Einfluss von PfaturwissenschaJt und Mathematik auf Rechtsdenken und RechtswissenschaJt in Zweieinhalb Jahrtausenden. Ein historischer Grundriss (Berlin, 1970; Miinsterische Beitrage zur Rechts- und Staatswissenschaft, 15), 52— 100, 120-33.
except in Germany, where some were specially founded in the spirit of the Aufkldrung (Halle in 1694, Gottingen in 1737), and where natural law was taught with enthusiasm. In France in particular the faculties of law made virtually no contribution to the legal developÂments of the eighteenth century. Of course, some lawyers knew the doctrines of Pufendorf, Thomasius and Wolff, and some professors exerted a considerable influence on the codification, but the decline of the universities continued. The case of Orleans is typical: one of the most influential jurists of the time, Pothier, taught there; but the university (which was in any case no more than the pale shadow of the brilliant school it had once been) was obliged to close its doors in 1793 for want of students. In the eighteenth century universities were also in decline in many other countries, and their suppression at the time of the French Revolution hardly took contemporaries by surprise. Science and modern philosophy had taken shape outside university institutions; and the universities had been discredited by granting degrees to candidates without serious examination, or even simply selling them to those whose only merit was to have taken the trouble to make the journey to the university city. The fate of university reputations and the value of their degrees can readily be imagined.24