THE ENLIGHTENMENT
62 The renewal of the law has to be seen in the context of the Enlightenment, a European-wide movement which took a critical attitude towards the ideas and the society of the ancien regime in general.
There was criticism especially of the following points. First, of inequality before the law, which was entrenched by the political system of Estates, with its fiscal privileges for the orders of nobility and clergy, and limited access to public office. Second, of the restraints on people and property: serfdom still existed, while various feudal and Corporatist restrictions dampened down economic acÂtivity. â€?Liberty’ and â€?equality’ were therefore essential demands as much in the political programmes of enlightened despots’ as in the French Revolution. Third, there was criticism of unpredictable and arbitrary intervention by the Crown, and the exclusion of popular participation (in particular by the Third Estate) in political affairs. Next, there was criticism of the predominance of the church and of the religious intolerance which many considered a relic of an obsolete past. Christian revelation, through the divergent interpreÂtations of its doctrine, had plunged Europe into religious wars, and its absolute authority was now fiercely contested. The hope - in the spirit of the Enlightenment - was that logic and science would form the new foundation of a secure learning throughout civilized Europe.Official links between church and state were criticized. They meant that the order and government of society were subordinated to transcendental values and priorities. The new theories affirmed that the life of a society ought not to be divorced from reality, but to tend to assure the greatest (worldly) good of the greatest number of citizens. The inhumane character of many aspects of public life was criticized. Criminal law provided for the infliction of appalling capital and corporal punishments and mutilations; criminal proÂcedure still made use of torture: these were the particular object of criticism.
Argument from authority, which had dominated thinking for centuries, was now rejected. Previously an absolute value had been attributed to sacred books in different areas - religion, learnÂing, law. The conviction was that what was old was therefore good and respectable. Now the belief was in the need for freedom from the past in order to assure a better future. Faith in progress now replaced faith in tradition.To sum up: the old world underwent a radical renewal, which was guided by the principles of human reason and by the aim of achieving the happiness of man. The achievement of this aim now seemed to demand that the burden of preceding centuries be cast down. Applied to law, this programme meant that the proliferation of legal rules must be sharply reduced, that the gradual development of law ought to be replaced with a plan of reform and a systematic approach, and finally that absolute authority ought to be claimed
, This is stated expressly (e.g.) in the Allgemeines Burgerliches Gesetzbuch (ABGB) of Joseph II from 1786 (this is the first part, known as the Josephinisches Gesetzbuchi of the Austrian ABGB: see below).
Enlightenment, natural law and the modern codes 117 neither for traditional values such as Roman law, nor by the learned lawyers and judges who had appointed themselves â€?oracles’ of the law.[19] Old customs and books of authority must be replaced by new law freely conceived by modern man, and whose sole directing principle was reason. This new law would be free of all obscuranÂtism. It would constitute a clear and certain system, comprehensible to the people, for the law from now on would also be at the service of the people. To realize this objective two conditions had to be fulfilled. The first was material: the creation of a new legal system based on a new body of sources; the second was formal: a new technique must be developed to ensure that the new law was applied in practice. The first condition was fulfilled by natural law, the second by legislation, and in particular by the national codes introduced throughout the European continent. These two aspects now demand more detailed examination.