Effects of Codification in General

The codification of European private law since the close of the eighteenth century is very widely regarded as a major turning point in its development.^[1] Obviously, some of the high hopes and expectations entertained at the time of the Enlightenment have not been fulfilled: neither have the codifications made the learned lawyer redundant, nor have they led to a lasting consolidation (or, to put it negatively: ossification) of private law.

Still, however, they have significantly contributed towards the national fragmentation of the European legal tradition: after all, they were enacted by the legislature of a specific state and were applicable, therefore, only within the limited territorial area for which that legislature was competent to lay down laws. The first signs of this fragmentation of the civilian tradition had already become visible at the lime of the itsits modernits pandectaruni of the seventeeth and eighteenth centuries when the 'institutional' writers had no longer discussed Roman law as such but Roman- Dutch, Roman-Scots, Roman-Hispanic, or Roman-Saxon law.^[2] But it had always been clear that ultimately these were merely regional or national variations of an essentially uniform theme: different emanations of a common legal tradition. This was demonstrated, for instance, by the continuing habit of the peregrinatio academica, the quotation conventions of the learned literature, and the appointment policies within the law faculties. With the enactment of the codifications there was a change. The awareness of a fundamental intellectual unity was gradually lost, and thus the national isolation of legal practice, legal training, and legal scholarship gained ground which they are only now beginning to surrender.

Moreover the codifications have ended the 'second life' of Roman law during which it was directly applied in practice.

Since the days of the 'reception' Roman law had provided the basis for the administration of justice in Western and Central Europe and had become a ins commune, or common law. In the process, it had absorbed many elements of Canon law and of the indigenous customary laws: it was no longer the usus antiquus but had been transformed into an usus modernus.^[3] At the same time, however, a string of authors from Francois Ilotman to Hermann Conring and Christian Thomasius had started to shake the authority of Roman law: of a law that had given rise to intricate doctrinal disputes, that was wedded to outdated and impractical subtleties, and that had been enacted by the despotic rulers of another age and country. Also, since Roman law was only applicable in subsidio, countless more specific territorial or local laws could govern a particular dispute.^[4] The great number and complexity of legal sources thus contributed to a widespread feeling of both legal uncertainty and inefficiency as far as the administration of justice was concerned. The codifications of the age of the Law of Reason were supposed to tidy up this messy situation: they were to provide a systematic regulation of the entire private law, ousting all rival sources of law including, in particular, the Roman-Canon ins commune. Thus, art. 1 of the Dutch Abrogation Act (Afschaffingswet) crisply slated: 'The legal validity of Roman law is and remains abrogated.'

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Source: Zimmermann R.. Roman law, Contemporary law, European law. Oxford University Press,2004. — 113 p.. 2004

Effects of Codification in General

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