ACCT 210 Lecture Notes - Lecture 24: Samuel Von Pufendorf, Martial Power, Ancient Germanic Law
9 Aug 2020
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Codification 1 – Notes
1 – towards a new ius commune?
- The end of the cold war accelerated the process of European integration
- 1992 treaty of Maastricht transformed the European community into the European union
- Single currency got introduced on the first January 2002
- 2004 ten countries got added to the EU
- The rejection of an European constitution in 2005 by French and dutch voters put a
temporary end to the period of acceleration
- The MS like to have their autonomy in the area of criminal law – the unification of European
laws happen primarily in the fields of private law and much less in public law
- People are pushing for a European ius commune – common private law for all of Europe –
many see this goal reachable through a European civil code
2 – The new civil law tradition
- Biggest problem towards a common civil code is the dividing between civil law (used in
continental Europe) and common law (used in England and in Ireland)
- Civil law countries have generally codified their private law in national legislature
- Historical explanation for a truly continental civil law tradition :
o The codification movement was inspired and promoted by the natural law and
Enlightenment thinkers (17-18th centuries) – European movement
o Majority of civil codes spring out from the same 2 models :
▪ The French Civil Code (1804)
▪ The German Bürgerliches Gesetzbuch (1896/1900)
o The codification of the 18 and 19th centuries did not mark a radical break with pre-
codification law as the new codes were largely inspired by the “old” law
3 – The civil and common law traditions
- Origins of the civil law tradition : 11th century – rediscovery of ancient roman law in Italy
- Marked the beginning of European legal science
- The scholarly démarche was a genuine European way of doing until codification the study of
law was merely focused on roman and canon law – this learned law is also called ius
commune
- The line that gradually grew between common and civil law goes back to the influence that
the ius commune had on that part of Europe (England/Ireland v continental Europe)
- The fact that common law started to develop pretty early (12th century) meant that the
influence roman law could have was really restricted
4 – The rise of European legal history
- Efforts to introduce a European system of private law have stimulated interest in the legal
history of Europe in pre-codification times
- As a matter of fact, advocates of the new ius commune search the past for arguments to
support their case and the historical ius commune provides a point of reference
396 – Grotius
- Grotius (1583 – 1645)
- Hugo Grotius may be considered the founder of the modern school of natural law –
counterpart in the humanities
- He secularised natural law by detaching it from Christianity
- Until the 17th century, natural law was primarily the domain of theologians and canon
lawyers. Then it evolved into an important branch of secular jurisprudence
- Grotius found it important to mention that due to its capacity to reason and to distinguish
good from bad, the human was different from any other living being + man is a social animal
- Natural law consists of a number of moral-legal principles that each reasonable person
considers natural and recognises as being reasonable
- According to Grotius the basic principles of natural law (laid down in de iure belli ac pacis)
are all in the sphere of maintenance of the social order
- The natural law rule pacta sunt servanda renders all agreement binding
- Natural law consists of general and unchangeable principles
397 – Law of reasons
- The lawyers of the 17-18th centuries took the challenge of Grotius and tried to establish a
solution for every single human problem on basis of a few axiomatic precepts of natural
justice
- Natural law is also referred to as “Vernunftrecht (=law of reasons)” because it was seen that
it should be possible to solve every human problem on basis of reasoning without need to
reference positive law
398 – German and French natural lawyers
- Many principles, concepts, and rules of roman law and civilian jurisprudence were
considered to be reasonable and just and were thus adopted in the natural law
- Look up Gottfried Wilhelm Leibniz – nova methodus discendae docendaeque jurisprudentiae
(1667)
- The law needed to be more systematised, more geometrico
- German natural lawyers (eg Samuel Pufendorf – his natural law is very Christian + moral
philosophy) tried to describe an entire legal system along purely idealistic lines
- Germany : Christian Thomasius (1655 – 1728) and Christian Wolff (1679 -1754)
- Wolff inspires the idea that jurisprudence should confine itself to basing its judgements as
closely as possible on general legal principles, without any external input
- France : Jean Domat (1625 – 1696) he did work too on the basis of a number of Christian
moral premises from which he derives more concrete rules more geometrico (les lois civiles
dans leur ordre naturel – used as a source to create the French civil code of 1804)
399 – Natural law and the universities
- The natural lawyers conquered some academic establishment (mainly in Germany) but most
universities kept the usus modernus pandectarum.
- This means that most university professors left matters at a compromise between natural
and roman law, as the latter was said to contain natural reasoning
- Roman law remained an instrument for change
4 The codification movement in Germany
400 – The inspiration for the codification movement
- During the 18th century the ambition grew to replace existing law by a system of codes
- Modern codification differed from the Justinian codification
o Justinian codification
▪ It was a compilation of existing law
▪ It was exclusive (anything not mentioned in it was abolished)
▪ It did not lead to the creation of new laws
o Modern codification
▪ Abolishes existing law and replaced it not just formally but substantively :
▪ The codes introduced new laws
▪ Inspired by the Enlightenment and the School of Natural Law
- The codification movement was also tied in with the political programme of the
Enlightenment – introduction of separation of powers
401 – The Prussian codification
- Bavaria : Codex Maximilaneus Bavricus civilis – 1756
o Instructions of Elector Max Joseph 3 (1705 – 1777)
o The text was the work of Wiguläus von Kreittmayr (1705 – 1790)
o No claims to exclusivity – roman law for lacunae
- Prussia : see lecture
402 – The Austrian codification
- Maria Theresa commissioned work on codification in 1753
- The code had to be based on the ius commune
- Natural law would be applied to improve and in case of lacunae of learned law
- First draft completed in 1766
- In 1786, Joseph 2 introduced a first part of the code as the Josephinische Gesetzbuch – the
civil code as a whole was not completed until 1811
5 Codification in France
403 – Codification in the Ancien Régime
- The French revolution (1789) entailed the codification of the law which put an end to the
different systems of jurisdiction and legal systems throughout France and would subject
everyone to the same rules
- On July 5th 1790 the constituent assembly ordered the codification of the law
- Legislation was the instrument par excellence for the central ruler to bring innovation and
unity to the law
404 – Napoléon and the codification
- The codification (which didn’t work during the first decade after the revolution) got a new
kick with Napoléon Bonaparte
- He appointed 4 members to compile the civil code
- The members came from different legal backgrounds in Roman and customary law
- The draft was sent to the Court of Cassation and discussed in the Council of State where
Napoléon himself took part in deliberations and pushed through his view on different
matters
- The Code Civil was introduced in 1804
- It still applies in France, Belgium, and Luxembourg
