From the sixteenth century to the introduction of the first European civil codes
The Humanist movement
We have seen that with the rise of the school of the Commentators in the fourteenth century scholarly attention shifted from the dialectical examination of Justinian's texts to the consideration of the adaptability of Roman law to the needs and conditions of medieval life.
But as the Commentators were primarily interested in developing contemporary law, they tended to disregard the historical framework and the primary sources of Roman law. From the fifteenth century the increased interest in the cultural inheritance of classical antiquity, associated with the rise of humanistic scholarship, led to the development of a new approach to the study of Roman law. Scholarly attention now turned to the consideration of Roman law as a historical phenomenon and special emphasis was placed on the importance of the techniques of history and philology for its proper understanding and interpretation. The methods used by the Commentators in the study of Justinian's texts had led to the formulation of theories which, from the Humanists' point of view, were utterly unwarranted when the texts were studied in their proper historical context; such theories had therefore to be rejected in favour of interpretations based upon the true historical sense of the texts. The chief aim of the Humanist scholars was thus the rediscovery of Roman law as it was in Roman times through the application of the historical method instead of the scholastic method (referred to as mos Italicus) of the medieval Commentators. A considerable part of the Humanists' work was concerned with the detection of the interpolations in the Justinianic codification as an important step towards uncovering the true character of classical Roman law.The new school of thought was initiated in France by the Italian Andreas Alciatus (1492-1550) but its effects were felt all over Europe.[1390] Among the most important representatives of this school, which included not only jurists, but also historians and philologists, were Jacques Cujas (Cuiacius, 1522-1590), Hugues Doneau (Donellus, 1527-1591), Guillaume Bude (Budaeus, 1467-1540), Ulrich Zasius (1461-1535), Antoine Favre
The History of Roman Law after Justinian 441 (Faber, 1557-1624), Charles Annibal Fabrot (Fabrotus, 1580-1659)[1391] and Jacques Godefroy (Godofredus, 1587-1652).[1392] The method adopted by the Humanist scholars in France for the study of Roman law became known as mos gallicus (in contradistinction with the mos Italicus of the Bolognese jurists) or Elegante Jurisprudenz.
In general, however, the Humanist movement does not seem to have had much influence on the practice of law as the courts in France and elsewhere remained faithful to the Bartolist tradition. This was largely due to the fact that most Humanists were concerned chiefly with the historical analysis of Roman law and paid little attention to problems relating to the practical application of the law or the need to adapt Roman law to contemporary conditions. At the same time, however, the Humanists' approach to Roman law as a historical phenomenon helped jurists to appreciate the differences between Roman law and the law of their own times. By drawing attention to the historical and cultural circumstances in which law develops the Humanists prepared the ground for the eventual displacement of the ius commune and the emergence of national systems of law.[1393]The school of Natural law
In the seventeenth and eighteenth centuries European legal thought moved in a new direction under the influence of the school of Natural law. The new school challenged the supreme authority which medieval jurists had accorded to the codification of Justinian. It did so on the grounds that the Corpus Juris was an expression of a particular legal order whose rules, like the rules of any other system of positive law, had to be assessed in the light of norms of a higher order, eternal and universally valid - the norms of
Natural law. Natural law was understood as being rational in its content, since its norms could be discovered only by the use of reason, logic and rationality, common to all men of all times and of higher moral authority than any system of positive law. From this point of view, the Natural lawyers rejected certain 'irrational' features of the Roman system drawn attention to by the Humanists, such as the remnants of the old Roman formalism found in the Corpus Juris, as being specific to the Roman system of social organisation and restricted in time.
At the same time, however, they recognised that Roman law contained a large number of rules and principles which reflected or corresponded to the precepts of natural law - rules and principles which they regarded as the product of logical reasoning on the nature of man and society rather than the expression of the legal development of the Roman state. The Roman doctrine of ius gentium and ius naturale, in particular, seemed to lend support to their own theories, and many legal principles espoused by Roman jurists appeared to be suitable materials upon which to draw in building a rational system of law. As regards their methodology, the Natural lawyers, by relying on deductive reasoning, sought to derive from a small number of general concepts abstract principles of universal application which could then be used as a basis for developing an orderly and comprehensive system of law. Among the founders of the school of Natural law was the Dutch scholar Hugo Grotius (1583-1645), who in his work De lure Belli ac Pacts (Concerning the Law of War and Peace) laid the foundations for the development of modem international law. Other noteworthy representatives of the school were Samuel Pufendorf (16321694), Christian Thomasius (1655-1728), and Christian Wolf (1679-1754). The Natural law school, with its system-building approach to law, gave rise to a renewed interest in codification as a means of integrating the diverse laws and customs of a national territory into a logically consistent and unitary system.[1394]The codification movement
The rise of nationalism and the consolidation of royal power in Europe in the seventeenth and eighteenth centuries led to an increased interest in the development of national law and this, in turn, precipitated the movement towards codification. The demand that law should be reduced to a code arose from two interrelated factors: the need for establishing legal unity within the boundaries of a nation-state, and the need for developing a rational, systematised and comprehensive legal system adapted to the conditions of the times.
The school of Natural law, with its rationalist approach to institutional reform and its emphasis on comprehensive legal system-building, provided the ideological and methodological basis upon which the codification movement was to proceed. As a result of the unification of national law through codification, the ius commune was eventually displaced and Roman law ceased to be a direct source of law. But as the drafters of the codes relied heavily on the ius commune, elements of Roman law were incorporated in different ways and to varying degrees into the civil law systems of continental Europe.[1395]The first national codes aimed at achieving legal unity within one kingdom were compiled in Denmark (1683) and Sweden (1734). The process of codification continued in the late eighteenth and early nineteenth centuries with the introduction of the Bavarian, Prussian and Austrian Codes, completed in 1756, 1794 and 1811 respectively. The Natural law philosophy exercised a strong influence on both the contents and structure of these codes. But the most important codificatory event of this period was the enactment of the French Civil Code {Code civil des francais) under Napoleon in 1804. The chief aim of Napoleon's Code was to unify the law of France by fusing into one comprehensive system Roman law, customary law, royal ordinances and some laws of the revolutionary period, and in this respect it succeeded brilliantly. The importance of the Code lay not only in the fact that it brought about legal unity within France, but also in the fact that it was adopted, copied or adapted by many countries throughout the world. This was partly due to its clarity, simplicity and elegance, which made it a convenient article of exportation, and partly due to France's influence in the nineteenth century. Codes modelled on the French Code were adopted in Italy, Belgium, Holland, Portugal, Spain, Quebec, Egypt, Louisiana and several other countries around the world.
In Germany the French Civil Code attracted a great deal of attention and, as Napoleon extended his rule over Europe, it came to be adopted in some parts of the country.
But with the rise of German nationalism in the course of the wars of independence many scholars began to speak of the need for the introduction of one uniform code for Germany that could unite the country under one modem system of law and precipitate the process of its political unification. In 1814, Thibaut, a professor of Roman law at Heidelberg, expressed this view in a pamphlet entitled 'On the Necessity for a General Civil Code for Germany'. Thibaut, a representative of the Natural law movement, claimed that the existing French, Prussian and Austrian Civil Codes could serve as useful models for the German draftsmen. Thibaut's proposals were met with strong opposition by the members of the Historical School, headed by the influential jurist Friedrich Carl von Savigny (1779-1861).[1396] Savigny's thesis, expressed in a pamphlet entitled 'On the Vocation of our Times for Legislation and Legal Science', was that law, like language, ethics and literature, was a product of the history and culture of a people, a manifestation of national consciousness (Volksgeist), and could not be derived by logical means alone from abstract principles of Natural law. From this point of view, Savigny argued that the introduction of a German Code should be postponed until the historical circumstances in which the law in Germany had developed were fully understood and the needs of the present were properly assessed.Under the influence of the Historical School and, perhaps more importantly, because of the lack of an effective central government, the early proposals for codification were abandoned. At the same time scholarly attention turned from the largely ahistorical Natural law approach to the historical examination of the two main sources of the law that applied in Germany, namely Roman law and Germanic law, with a view to developing a true science of law. A group of scholars focused on the study of Germanic law, whilst others, including Savigny himself, concentrated on the study of Roman law, looking beyond the ius commune into the Corpus luris and other ancient sources.
The latter jurists set themselves the task of studying Roman law with the aim of bringing to light its 'latent system', which could then be adapted to the needs and conditions of their own society. In carrying out this task the Pandectists, as these jurists became known, brought the study of the Corpus luris, and especially of the Digest, to its highest level, and produced an elaborate and highly systematic body of law {Pandektenrecht) for nineteenth century Germany." Eventually, however, the Pandectists, convinced of the superiority and eternal validity of Roman law, came to adopt a largely ahistorical and primarily doctrinaire approach to law. Their chief objective was the construction of a legal system in which all particular rules could be derived from and classified under a set of clearly formulated juridical categories and abstract propositions. Although this way of thinking was met with severe criticism by other scholars, especially those belonging to the Germanist branch of the Historical School, the Pandectists played an important part in the process towards the codification of the civil law in Germany which began in 1874, three years after the political unification of the country under Bismark. The German Civil Code {Bürgerliches Gesetzbuch or BGB) was finally promulgated in 1896 and came into force in 1900. Its chief characteristics are its highly systematic structure and its conceptualism - in both these respects it owes much to the contribution of the Pandectist school. Like the French Code, the German Code has had a wide acceptance outside the frontiers of Germany. Codes influenced by it were adopted in Japan, Brazil, Hungary, Switzerland, Greece and Turkey.[1397] [1398]
More on the topic From the sixteenth century to the introduction of the first European civil codes:
- 11 CIVIL LAW AND LOCAL LAWS IN THE THIRTEENTH CENTURY
- The Gregorian and Hermogenian Codes
- CODES AND AUTHORITY
- Lecture Two— The Transition from Civil Law to Civil Code in Germany: Dawn of a New Era?
- The Germanic Codes of Roman Law
- The Germanic Codes of Roman Law
- LAW CODES AND CODIFICATIO
- “PUBLIC” CODES AND “PRIVATE” SYSTEMS
- ROMAN LAW IN THE TWENTIETH CENTURY
- Roman law in the twentieth century
- The Development in the Twentieth Century (Overview)