natural law and codifications Flashcards
(29 cards)
natural law
= impeccable, supra-human, universal and unwritten law that should be binding for some motive (e.g. God, ethics or reason) in contrast to the human (positive) law, which is changeable and possibly fallible.
Aristotle: Nikomachean Ethics
— things that are by nature vs. things which are by convention
— those by nature are not changeable
Cicero: De Legibus
— common to all men and restricted to any place
— no need of interpretation, recognised by men as being in accordance with ‘right reason’
— implanted in nature
— unchanging through time and space
— fundamental: cannot be altered or abolished
natural law in Roman Empire
Ulpian’s trichotomy:
1. ius civile: law applicable to Romans, law of any particular state
2. ius gentium: laws common to every state eg. slavery, contract of sale
3. ius naturale: ‘which nature taught animals’ → Paul: ‘which is always just and fair’
Justinian’s Intitutiones: natural laws are which are equally observed by all nations, established by divine providence and remain firm and unchangeable forever.
Thomas Aquinas: Summa Theologica
— eternal law cannot be directly known by man bit could be discovered in three ways:
1. divine law: divine revelation, Holy Writ → authority unquestioned!
2. natural law: „participation of eternal law in the rational creature“, which can be recognised as self-evident by any thinking person.
3. human law: laid down by ruler of the community, whose authority stemmed from the supposition that he exercised his power by divine right.
— divine law prevails over human law
— natural law also mostly prevails over human law, but it may be necessary to obey it ‘to avoid scandal or disturbance’
Spanish Scholasticism (16th– 18th century)
- The University of Salamanca
- problems with the conquest of the „New World“ to which ius commune cannot offer solutions
- Domingo de Soto: commentaries on Aquinas moved in the direction of equating natural law and moral principles.
- Francisco de Vitoria as founding father of international law → Spanish have the right to inhabit the new world according to natural law!
Hugo Grotius: De Jure Belli ac Pacis
— influenced by the Spanish writers: treatment of natural law similar to Molina and Lessius
— immensely popular and influential: giving concrete shape to the rules of natural law
— natural law as core immutable principles stemming from nature which might have been laid down by God, but their existence does not depend on the existence of God!
— distinction between law of nature (self-evident) and law of nations (not so self-evident)
— human beings are social animals: do not just follow their own self-interest
— more concrete conclusions: the Dutch have the right of free trade over the sea!
basic principles of Grotius
generally recognised as law in all human societies, that should govern the relations between states:
→ Pacta sunt servanda
→ Damages have to be compensated
→ Penalties have to be imposed
Samuel Pufendorf
— natural law professor at Lund University
— starting point if human sociability: divided into duties owed to God, duties owed to one’s neighbour and duties owed to oneself.
— mathematical thinking and logical deduction applied to natural law
— provides a rational structure and a „scientific“ method for identifying it
— natural Law becomes more and more pure „Law of Reason“ (Vernunftrecht)
— ius gentium and ius naturale indistinguishable: inter-state relations were governed by immutable principles in the absence of specific treaties.
Law of Reason (Vernunftrecht)
— Geometric method, finding principles and axioms to derive rules of law, principle of non-contradictions
— Systematization of 17th and 18th century as precursors for codifications
— Late adaptation in Habsburg Empire (Karl Anton Martini and Franz von Zeiller in the late 18th and beginning 19th century)
— Natural law as an instrument to criticise positive law
other influential natural lawyers of the 18th century
Christian Thomasius: natural law is no more than a template for positive law and has no obligatory dimension in itself.
Christian Wolff: applying scientific method to diverse fileds: economics, psychology, cosmology.
Jean Domat: Roman law largely embodied natural law: reordering Roman texts according to their rational basis
changing understanding of nature
— Teleological thinking as preeminent in Antiquity and Middle Ages (Aristotle’s causa finis)
— Human acts and society serve a higher purpose (Augustine)
— modern times: new conception of studying and explaining nature with new methods (e.g. Descartes)
— Focus on the question how nature works (Aristotle’s causa efficiens)
natural law in England
— no abstract frameworks like Roman law and no codification movement
— influence of Grotius, Hobbes, Locke and Putendorf
— no wholesale adoption of natural law rules!
Sir William Blackstone: Commentaries
— concrete precepts built on self-evident foundations
— systematic strcuture, pointing to having a basis in rationality
characteristics of a codification
— an entire legal order or an entire area (e.g. General Code or Criminal Code)
— Systematic and non-contradictory in itself → clarity and transparency
— Must be exclusive in its applicability → exclusion of other sources of law
— Must be enacted by a competent authority
Codex Maximilianeus Bavaricus Civilis 1756
— Civil law, feudal law, public law
— contains Ius Commune, Ius Commune used as subsidiary law
— natural law only as the impetus, not in the content
Prussian General State Law (Allgemeines Landrecht) 1794
— entire legal order of Prussian states (civil, commercial, criminal, ecclesiastical and administrative) based on Roman law
— 19.000 provisions, casuistic and lacking linguistic simplicity
— provincial laws have priority
— influenced by the usus modernus pandectarum
Code Civil (Code Napoleon) 1804
— One of „Five Codes“, this contains civil law → greatest reliance on natural law
— first true natural law code: contained abstract propositions!
— Secularized, based on civil rights
— Unified civil law completely, no subsidiary applications!
The Developement of the ABGB:
- 17th century: proposals for a codex, but only private collections
- Maria Theresia starts collection (Codex Theresianus, CT) → too long, Johann Bernhard von Horten shortens it
- Part One of „Josephinian Code“ (personal, family, matrmonial) but Joseph II. dies before completion
- 1790: Karl Anton von Martini takes up work with a commission
- 1797: General Civil Code for Western Galicia (GCCWG)
- 1801-1810 another commission under Franz von Zeiller revises the GCCWG
- General Civil Code enacted 1811, in force 1812
Karl Anton von Martini
— son of a lawyer from the Trento,
— High positions on the Habsburg court
— professor for Natural Law and Institutiones, writes well-known textbooks on Natural Law
— Draws (also) from catholic sources of Natural Law
— Sees Natural Law in accordance with newer currents as adaptable to local circumstances (makes it acceptable for Habsburg Absolutism)
— Pupil Franz von Zeiller completes codification work for him
General Civil Code (Allgemeines Bürgerliches Gesetzbuch) 1811
- natural law influence: system, liberties
- absolutist influence; feudal order remnants
- exclusive and general application for civil law
- abstract, based in principles, systematically ordered
partial reform of ABGB
- Encompassing reform in a single act of lawmaking is not possible, hence three partial amendments by way of imperial emergency decree:
1914: Family, guardianship and inheritance law
1915: Boundary demarcation
1916: Property law and law of obligations, in particular law of damages, warranty and statute of limitations
- Modernisation under the influence of codifications in Germany and Switzerland
- Adoption especially from the German BGB
- Adaptation to the state of the art of civil law
ABGB as a model
Direct validity: Liechtenstein
- Principality of Moldova (1817) Serbia (1844), Montenegro (1888).
- Parts of Switzerland (cantons of Aargau, Solothurn, Lucerne and Bern)
- Transylvania
- The parts of Poland, Czechoslovakia and Yugoslavia that belonged to the Habsburg Empire until 1918
Code Civil as a model
direct validity in the course of the Napoleonic Wars in: Left Rhine territories in Germany, Luxembourg, Belgium, Piedmont-Sardinia, cantons of Bernese Jura and Geneva in Switzerland
Code Civil was adapted in:
* Piedmont-Sardinia (1837), Netherlands (1838), Italy (1865), Portugal (1868) Spain (1889)
* Confederation of the Rhine in Germany
* Some cantons in Switzerland
* Louisiana after the purchanse by the US
* Lower Canada (Quebec)
* Latin American states after independence
* Japan creates drafts upon the French model in the 1870s (come never into effect)
Référé législatif
→ Interpretation and further development of the law only by the legislaton
→ Binding of the judge!
→ Codex Theresianum (1766) and the Josephinian Code (1786) still provide for it, but West Galician Code (1797) and General Civil Code (1811) no longer contain it
→ The General Civil Code even gives explicitly power to the judge to decide cases when neither the words nor the natural meaning is clear
→ Référé législatif is to be distinguished from authentic interpretation, according to which only the legislator may explain the law in a generally binding manner
→ Interpretation of the codification by the courts is allowed, but the result is not generally binding but relevant only for individual cases
