EARLY CODIFICATIONSIN GERMANY AND AUSTRIA

The first efforts to codify a state's law were made in the German­speaking countries. The earliest completed codes were those of the Duchy of Bavaria and were the work of one man, W.

The codes of Prussia and Austria were the product of much consul­tation. Already in 1714 King Frederick William I of Prussia, on succeed­ing to the throne of what were still scattered dominions, had directed the law faculty of the University of Halle, whose leading member was Christian Thomasius, to prepare within three months an intelligible statement of private law. The project was never carried out, and Frederick William's energies were otherwise engaged, but twenty-four years later he commissioned Samuel von Cocceji, his minister of justice, to prepare a new statement of the law. Unlike Thomasius, Cocceji was a keen Romanist and tried to maintain the primacy of Roman law, but popular feeling was against him. The public mind associated the lengthy trials and apparently arbitrary decisions of the courts with the training that advocates and judges had received in Roman law.

When Frederick the Great succeeded his father, he resolved to have a code, written in German and based primarily on ‘natural reason and the character of the country', with Roman law included only if it fitted in with them. The main draftsman was Carl Gottlieb Suarez, who shared the view of Christian Wolff that the duty of the ruler was to lead his sub­jects to a perfect, rational life, in which they would be good men as well as good citizens.

The final text of the Allgemeines Landrecht, enacted in 1794, is enormous. It is loosely structured on Pufendorf's distinction between man as an individual and man as a member of groups, ranging from the family, through social classes, to the state. It comprises 19,000 articles, dealing not just with private law but with public, criminal, feudal, ecclesiastical and commercial laws and purports to govern much that would normally be regarded as unsuitable for legal regulation, such as the intimate rela­tions of husband and wife. Roman influences are noticeable mainly in the sections on property.

In Austria, with its vast rambling provinces, each with its own separ­ate administration and court structure, the need for unification was par­ticularly acute. The Emperor Charles VI sponsored a unified law of intestate succession, which was largely based on Justinian's law. This was put into force in Upper and Lower Austria between 1727 and 1747. Charles's successor, Maria Teresa, wanted a more comprehensive codification. In 1753 she issued a directive to draft a code of general private law, ignoring the laws of special groups or classes, to be based on the ius commune, but using the law of reason to correct or complete it.

The first draft, the Codex Theresianus of 1766, was a compromise between the traditional laws of the various provinces, with their differing mixtures of customary and Roman elements. Its 8,367 articles were written in the vernacular but grouped the material in Roman cat­egories. It was attacked both by conservatives, who did not want to lose their provincial privileges and felt that it went too far, and by reformers, who believed that it did not go far enough. The latter concentrated their fire on the Roman elements, which they said gave the code an old-fash­ioned look. They argued that the aim of the new code should be to get rid of obscure, mutually contradictory, laws, whether of Roman or of customary origin, and to replace them with an entirely new ‘modern' law.

In the intellectual climate of the time, modern law meant natural law. The leading exponent of natural law in Austria was Karl Anton von Martini and he was clear that to jettison Roman law completely was to throw out the baby with the bath-water:

Roman civil law consists to the greatest extent of natural laws. It is possible to avoid all error if its shortcomings are complemented according to the precepts of natural law and its dark passages illuminated. Many Roman laws are arbi­trary laws and some are opposed to reason. Only natural jurisprudence teaches one to distinguish arbitrary from necessary laws and improve those which are opposed to reason (Lehrbegriff des Natur- Staats- und Volkerrechts, Vienna 1783, para. 228)

An important feature of Roman private law was that among freemen the law made very little distinction between those of different social status. Compared with contemporary legal systems, it was less stratified. Thus, although Roman law as such was rejected, certain ideas of Roman law could be brought back under the guise of natural law.

The work of revision of the Theresian draft continued sporadically and twenty years after its publication a simpler version, reduced to a quarter of the original size, was completed and sent to provincial assem­blies and the universities for their observations. The gist of their replies was that the code should give more expression to the limits which the law of reason imposed on the power of the central government. Martini pro­duced an uneasy compromise between the view that the monarch, not being bound by the law, had the power to make whatever law he thought fit, and the view that natural law itself contained limits which no legis­lator could overstep.

Martini was then replaced as senior draftsman by Franz von Zeiller, who produced the code of 1,502 articles which finally came into force in 1812. Under the influence of Immanuel Kant, Zeiller accepted the dis­tinction between morality and strict law, abandoned the notion that an agreed set of moral principles could be enacted and confined his code to what was law. He presented it as a practical compromise between Roman law, as expressing unchanging principles of reason, and the par­ticular needs of the state. Zeiller's code has endured, with certain amendments, to the present day.

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