Politics, principles and the law.
Or how a European codification will affect our legal systems
Peter A.J. van den Berg[*]
- Bentham or Von Savigny
The concept of ‘codification’ often evokes an image of a rigid system of law. This is true for many proponents of a codified legal system, as well as for its opponents. Those in favour of codification regard the resulting rigidity of the law as an advantage. According to them, the firm establishment of rules promotes the durability of the law and thus guarantees the recognisability and certainty thereof. Jeremy Bentham is probably the best-known advocate of the idea of laying all law down in writing.[1] Opponents of codification, on the contrary, fear that as a result of the rigidity, the law will not keep pace with the changes in society and that we will be saddled with law that has passed the best-before date. In particular, this objection against codification can be found in common law countries, which is perhaps due to the fact that over there the idea of codification is intricately connected to the writings of Bentham.[2] Curiously enough, the most important source of inspiration for these opponents is the German scholar Von Savigny, the undisputed leader of the historical school.[3]
On first thoughts the supporters of codification seem to have been right. Three important codifications of private law that came about around 1800 have proved to be very durable. The Codecivil (Cc) of 1804 is heading for its 200th birthday. Recodification has been considered in France, but the decision to do this was ultimately never reached.[4] The Austrian AllgemeinesbürgerlichesGesetzbuch (ABGB), adopted in 1811, is also still effective. The Dutch civil code of 1838 has rendered service for more than 150 years and even today a small part of it is still operative. Only the Prussian AllgemeinesLandrecht (ALR) dating from 1794 lost its force in 1900 as a result of the introduction of the German BürgerlichesGesetzbuch (BGB). Still, the ALR has been valid for over a hundred years and the BGB for its part recently celebrated its hundredth anniversary.
However, it is questionable whether this obvious continuity of the continental codifications also should be seen as proof of the durability of the law. Has the law really been rendered static in the codifications just mentioned? In recent years, this discussion on the consequences of codification for the law has gained in relevance, since there is a growing body of opinion in favour of a codification of European private law.[5] Will such a European codification rigidly fix the law and thus make it more durable? To answer these questions we have to take a closer look at the three codifications that withstood the ravages of time so well. In particular, it is necessary to investigate the reasons why the decisions to codify were taken around 1800 and whether this had any consequences for the nature of these codifications. I shall argue that these codifications were introduced for political reasons and that as a result they are characterised by a high degree of abstraction. Subsequently, the consequences of this characteristic feature of these codifications for the continental legal systems will be discussed. Some attention will also be paid to the state of affairs in England, where the judiciary has to operate without codification. Finally, I will give some indication as to the lessons that could be drawn for the discussion on European codification.
- Why the continental codifications were introduced
The interests of the litigant were, of course, regularly adduced as an argument for codification. However, the interest of the individual who wanted a smooth and affordable settlement of his legal disputes was seldom regarded as important enough to justify embarking upon the arduous project of codification. The major continental codifications were not motivated by the pursuit of a better law, nor by the wish to make the law better known and more certain. In other words, the (potential) litigant played a relatively small part in the decision process on codification. This conclusion also entails that natural law theory should not be regarded as the master of codification, contrary to what is still frequently maintained especially following German authors such as Thieme and Wieacker.[6] Among natural law theoreticians the opinion was widespread that the law should be systematised. This, as well as the idea of improving the law, could, of course, be used as an argument for codification. These arguments were produced and certainly exerted some influence. However, they seldom proved to be decisive. This is connected with the fact that from a juridical perspective a debate on codification is little more than a internal-juridical discussion on the question whether a code would prove helpful to those entrusted with the law finding process, a question which is rather difficult to answer. I will elaborate on the process of law finding with and without codification later.
Rather, the introduction of these codifications was determined by their function in the process of the formation of states.[7] As it happens, the three codifications brought about a sweeping change in a political situation which was considered undesirable. An important feature of the codifications mentioned was precisely their exclusive force. Together with the introduction of these codifications, statutes were declared to be the sole formal source of law. The central government thus established a monopoly on the making of law within its own territory, not unlike its monopoly on violence which was realised some centuries earlier. The states on the continent had ample political reasons to empower the legislator exclusively to make law. Around 1800, the continental states were ridden with substantial internal legal diversity, which was considered detrimental to the development of a sense of community among the citizens of the same state. A hundred years later, this was still true in the case of the then recently formed German Empire, reason enough to introduce the BGB.[8] The ALR constitutes the only exception in this respect.[9] The Prussian King Friedrich II had explicitly ordered the codification of the law of the separate provinces and the provincial systems of law would thus retain their primary force. The ALR would only be given the role of a subsidiary codex, which was not surprising since the realisation of legal unity was intended. Moreover, the introduction of it had hung by a hair. Only the necessity to provide the recently annexed territories in Poland with Prussian law, a clearly political reason, saved the ALR from meeting an inglorious end.[10]
- The characteristics of the unifying codifications
In the early nineteenth century, the codifiers were confronted with a problem not very different from the one the eventual European codifiers will encounter. They had to create a law based on the various and divergent legal systems which were in force within their respective countries until then. Fortunately a lot of preliminary work had already been done in the preceding centuries. In France especially legal scholars had developed a iuscommune using the method of comparative law. The drafters of the Code civil could and in fact did fall back on this so-called droit commun français. This had consequences for the character of the codification, since the method of comparative law necessarily involves the use of abstract legal concepts.[11] The new rules have to be formulated in a rather abstract wording in order to encompass all existing legal arrangements, including judicial decisions, however detailed and different. The various concrete solutions of legal problems were ‘aufgehoben’ on a higher level, to use a phrase of Hegel. Or, as described by the authors of the standard book on comparative law, Zweigert and Kötz, in the English translation of Tony Weir: ‘The system must be very flexible, and have concepts large enough to embrace the quite heterogeneous legal institutions which are functionally comparable’.[12] Indeed, it is much easier to formulate general principles than to reconcile effectively and codify a great number of judicial decisions from various legal systems.[13] Moreover, the chance that these provisions would be accepted in the various provinces was increased by leaving out some practical solutions that already existed in one or a few provinces. The vagueness of these provisions could, of course, also be directed at concealing the conflicts of interest for the benefit of the bourgeoisie.[14] I only want to emphasise here that for mere technical reasons the process of achieving uniformity on such an over-riding scale will inevitably lead to a high degree of abstraction.
The unifying codifications thus contained a relatively large number of general provisions. Of course, some questions had to be regulated decisively, such as the number of witnesses necessary to make a will, or the way property should be transferred. Particularly in the field of liability, however, one confined oneself to a remarkably small number of rather vaguely formulated rules. Tort was taken care of in the Code civil in only five articles (1382-1386 Cc), whilst the Dutch BW of 1838 includes not more than 16 articles (1401-1416 BW) on that subject.[15] In the ABGB and the BGB it was treated in greater detail, using approximately 30 articles.[16] In a way this could be regarded as symbolic legislation, since legal diversity was only symbolically resolved, at least in those fields. The abstract rules were uniform, it is true, but the concrete interpretation of these rules was still lacking in many cases. Many details constituting a wealth of juridical wisdom were thus sacrificed on the altar of legal unity.[17] The politicians were not bothered by this at all. They were more interested in the sense of legal unity that resulted from a uniform codex, than in the further details of it. Even the question whether similar cases were decided in the same way throughout the country was of marginal importance in their eyes. They mainly used the uniform national codex to create a sense of community among the citizens. However, the vague provisions still had to be interpreted. As we will see shortly, this was eventually carried out for the larger part by judges.
The only exception to this was, once again, the ALR, since the provisions of that code were not formulated in an abstract manner. It is true that the ALR shows a certain degree of systematisation. A glimpse at its contents demonstrates that a well-ordered arrangement in parts, titles and headings was used. Occasionally, one even encounters abstract definitions, such as the definition of the contract of sale.[18] However, on the whole it was notoriously casuistic. We only have to look at the number of articles deemed necessary to regulate problems of tort law, namely 138. Many provisions create the impression that they are summaries of case law. A clear indication for the casuistic feature can also be found in the severe judgements that were passed on this codification. Friedrich II, the King who had ordered the codification, made the following remark: ‘es ist aber sehr sicke und gesetze müssen kurtz und nicht weitläufig sein’. In 1954, the German legal historian Kunkel qualified the ALR even as a ‘monströses, geistwidriges Unternehmen’.[19]
Given the fact that the ALR did not bring about legal unity, at least not formally, the extreme casuistry is easy to understand. Some systematisation was required, as it was the idea that lawyers could fall back on the ALR, in case a solution was lacking in provincial law. For example, if a problem arose concerning tort, one could easily check whether part I, title 6 of the ALR offered an answer. Therefore, the onset of an abstract code was indeed present. However, since the purpose of the ALR was explicitly not to abolish the locally varying laws, it also was not necessary to restrict this new codex to a relatively few abstract, coordinating rules. On the contrary, the concept of a subsidiary code entailed that it consisted of rather detailed solutions for specific legal problems. This was in accordance with the instructions given by Friedrich II. It had to be a compilation of all the existing law, including the law that was comprised in judicial decisions.[20]
Apparently, there are two models of codification. On the one hand, there are unifying codifications in which a large number of abstractly phrased provisions has been used, such as the Cc, the BW 1838 and the ABGB. On the other hand, there are non unifying codifications that have been drawn up more casuistically, such as the ALR. It is significant that codifications of the first model were more successful, in that they lasted longer.
- Consequences for the process of law finding
So far, two facts have been established. Firstly, the codifications have proven to be durable by virtue of their abstract phrasing. Secondly, these abstract terms were used for political reasons, not with an eye to legal practice. The fact that the said codifications did not aim at creating ‘better law’ also found expression in the exclusive force attached to them. When the codifications were introduced, it was explicitly decreed that the existing sources of law, such as customary law and preceding case law, were formally abrogated. This exclusivity was of great consequence for the process of law finding.
As stated above, a large number of provisions lacked a specific content, in the expectation that the judges would fill in these vague rules. Already, these rules did not give the judges a lot to hold on to by mere reason of their vagueness. Their situation became even more difficult, because they were not allowed to put in the details by using the old sources of law they were so familiar with. Judges were ordered to decide cases solely on the ground of the new codification.[21] This rigorous choice for exclusivity can only be understood from a political perspective. The politicians feared that the judges would return to the so much despised legal diversity by basing their judgements on the law as they had always known it. The establishment of a supreme court should be viewed in that light as well. From the perspective of the legal practitioners, it would have been obvious to give the judge something to go by. Indeed, the exclusivity has caused considerable uncertainty, particularly in the period immediately after the codifications. Major disasters were only prevented, because judges often disregarded the ban on resorting to other sources than the code. In practice they often fell back, though implicitly, on the old sources of law such as the Roman law, despite the abrogation of their formal force.[22]
Thus, in the first period after the codification little appeared to have changed in the practice of continental lawyers, and in particular of judges. Formally they were strictly bound by statutes, but in fact judges continued business as usual, which meant that they kept using the old sources of law. What else could they have done? They could not simply set aside all the knowledge they had acquired during their education and in the course of their many years of practice. In the long run, the exclusive codification and the concomitant formal binding of the judge to the new statutes did have the intended effect, though. The codifications created the movement of ‘legalism’, which characterised the second period after the codification. Particularly in France and Belgium this movement, also known as the ‘exegetic school’, was influential. Bouckaert gives the following description of this movement: an author who used the exegetic method, religiously followed the order of the provisions of the code and painstakingly determined the intentions of the legislator; article after article was meticulously mentioned, explained, related to other articles and (sometimes) tested against case law.[23] The method was at its peak between 1830 and 1880.[24] In the Netherlands, legalism was less influential, but there too the focus was on the code.[25] The universities were of vital importance for this development. The new generation of lawyers was educated at these universities and there the view that the statute was the only formal source of law was adhered to with vigour. One restricted oneself to ‘the systematic study of the statutes given by the state’.[26] The exegetic school can be considered to be exponents par excellence of the statist doctrine of law, which is consistent with the observation that the state wanted to use the codification to establish its monopoly on the making of law.
Around 1900, a third period dawned in which the case law that had occurred while interpreting the codification and that had become an extensive oeuvre by then, was regarded as an additional source of law.[27] There was remarkably little resistance to this revival of the judges on the part of the legislator. The legislator obviously could afford to loosen the reins. He was probably confident that falling back on local law was not feasible anymore, since it was for the larger part erased from collective memory.[28] More importantly, with the exclusive codification the state had reached the aims it was after. These days, the countries in which a uniform codification was introduced all have legal unity and a sense of community among their citizens. Small wonder that the grip of the legislator on the making of law is still weakening. We are all aware of the increasing importance of vague rules in legislation, with the effect that the duty to make law is left to judges. Nowadays, the use of vague rules is not aimed at encompassing legal diversity conceptually, but at attaining law that is better attuned to the needs of society. For the same reason the legislator decided not to flesh out the abstract rules that were framed during the process of codification, for instance on tort law. Why did he not codify the case law concerning gevaarzetting and unfair competition in 1992?