The Theoretical Roots of the Codifications

Codifications crowded the scene during the last decades of the eighteenth century. The motivations behind them varied, but they all belonged within the Enlightenment currents that ^ccyearned for orga­nizational reform”^[7] and attempted utopian elaborations of new mod­els for society, or that sprang from the sort of prudent reaction that always opposes movements for reform.

Thus some supported the idea that it was up to the ruler, and to the ruler alone, to unravel or cut through the knottier problems of jurisprudence. The sovereign appeared, and in fact was, “illuminated” in that he was presented as giving rational order to social relations and “certain” rules for individual actions. In the broader picture, as­signing this task to the sovereign implied diminishing the role of ju­rists, who were still genuinely active in all sectors of the judicial do­main. It also implied an increase in the authoritarian centralization of the new sovereign.

One of the most significant theoretical statements in the Italian Set- tecento, Ludovico Antonio Muratori⁵S Dei difetti della, Giurispru- denzcp published in 1742,^[8] is shot through with this sort of thinking. Addressing his remarks to the sovereign, Muratori stated that confu­sion and irrationality were altogether too widespread; that jurists, singly and as a group, were too full of vain aspirations; and that they made exaggerated claims, presenting themselves or posing as high priests of justice, even of a justice both human and divine, like priests who defended and divulged the Divine Word.^[9] Muratori appealed to the sovereign to take action to cut through an inextricably snarled system of justice created by the argumentative and quarrelsome ver­bosity of the jurists.^[10] At the end of this work Muratori listed some of the spinier legal questions and the more dubious solutions, calling on the sovereign power to provide each of these with a sure law that would oblige the jurists, out of the obedience they owed to the sover­eign’s commands, to hold their peace.^[11] As Muratori saw it, the call for a “sure law” covering each of the problems he listed was not yet a proposal for the elaboration of a “code”; the set of laws that he re­quested of the sovereign power would certainly have lacked the com­pleteness, the homogeneity, and the capacity for generating further legislation that were to be typical of the nineteenth-century codes.

Furthermore, throughout the eighteenth century, even when ju­rists moved from exhortation to action, and even when the labors of learned commissions of jurists led to the elaboration and promulga­tion of a “code,” such codes lacked one of the characteristics of all modern law codes: the unity and equality of the juridical subject—the people—for whom the code was destined. What is more, the figure of the sovereign was still central to these schemes, like a keystone bear­ing the weight, assuring the equilibrium of the entire construction, and intervening from time to time with specific legislative provisions.

This was one of the characteristics of eighteenth-century absolut­ism. The codifications and attempts at codification were the form and the expression of that absolutism, and since they participated in its nature they shared its fortunes. No group—neither the nobility, nor the bourgeoisie, nor those who worked the land—recognized itself wholly in all the codified norms, because these codifications mirrored power and the ways in which power intended to safeguard society. Any line of thought tending toward renewal or reform found little room to maneuver; often the best it could hope to do was merely exist. Yet it was precisely in the existence of such thought that ideas took root that were to bear fruit after the French Revolution.

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