THE CODIFICATION MOVEMENT

In the eighteenth century the Roman civil law was caught up in the great intellectual movements of the Enlightenment. The rationalist natural law philosophy proclaimed that a complete set of laws could be stated simply and rationally, with existing complexities eliminated, and all that was needed to enact it was the will of the prince.

The eighteenth-century concept of a code was not just the committal of the existing law to writing in a clear and systematic order. A code was usually intended to replace old rules that had become outmoded with a new modern law, suited to the needs of the time. In considering what to retain and what to reject of the old laws, however, the codification move­ment made people conscious of the origin of the various elements in the different laws that were being synthesised. At first the Roman civil law occupied a prominent position in the minds of the codifiers but, as the century went on, its continued relevance came to be questioned. Roman civil law came to be viewed less as a timeless ius commune or natural law and more as the law of an ancient society, set in a period that was very different from the age of Enlightenment.

The late eighteenth-century attitude to Roman law was affected by the success of Montesquieu's De l'esprit des lois, published in 1748. Montesquieu challenged the abstract rationalist form of natural law, from which Roman elements had largely been squeezed out, but his views did little to support greater reference to Roman law. He begins with the reassuring observation that laws in general are ‘the necessary relations arising from the nature of things' and that human laws are the result of the application of reason. He then points out, however, that the nature of things, to which reason must be applied, differs from society to society. Laws cannot be universal but must be relative to the climate, economy, traditions, manners, religion, and so on, prevailing in a partic­ular society. These factors together form ‘the spirit of the laws' of that society, which the legislator ignores at his peril. Montesquieu used many examples from Roman law to illustrate his thesis but most of his readers must have drawn the conclusion that Roman law reflected the spirit of an ancient society, which was manifestly different from that of contem­porary societies.

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