Part 2: The Movement of Codifications From the Modern Times to the Comtemporary Period (Present day) Flashcards
What were the intellectual justifications for codifications?
Natural law
Unifying the law around of homogenous body of laws
Opposition of legal pluralism in Middle ages
Codification - a part of the intellectual evolution of Modern Times
What was the revolution of Natural law? Which are the most important philosophers?
The starting point was Thomas Aquinas (1225-1274)
Natural law results from observation of nature created by God of christians
Man and woman can have relationships and children - marriage is a law of nature
Men have to complete the process to make secure the legal system that must follow human nature
Hugo Grotius (1589-1645) and a new jusnaturalism
New concept of natural law. Insisted on rational character of natural law - laws are extracted for individual reasoning but observing nature
Positive law must confirm
Core of natural law theories: individualism and subjective rights
Start of secularization of law = A revolution. Grotius argued natural law is valid even if god is denied
Modern natural law forms a complete and coherent system
Rights today derive from axioms (basic principles in natural law)
Like “One must refrain from harming the property of others” –> The right to property
Modern natural law = Hyperrationalism. Law conceived as an exact science
How have French authors/philosophers had an impact on this Modern Natural law?
Scope of natural law: public law more then private law The new authors discussed the conception developed by Grotius
Human being the reason for humanity
Central idea: Clear, precise, simple law needed to reach justice
Critisism on legal pluralism
Montesquieu (1689-1755) Spirit of law (1748)
Refused to develop a doctrine on jusnaturalists
Tried to present different systems of society in the world. Main point was to critize, discuss classical idea of natural law, and maintain that is is impossible to know the laws of the nature
No general custom without taking account particular customs - they represent the spirit of French people
Voltaire (1694-1778)
Spoke of the barbarity of customs, critized the customs. A source of anarchy. Too many irrational customs
Law of evidence regarding customs is the reason why the codification was at stake
Rousseau (1712-1778)
Critised the classical idea of natural law and maintained that is it impossible to know the laws of nature
Need for three codes: Political code, civil code, criminal code
Codification is the best answer to imperatives of unity and simplicity
Diderot (1713-1784)
Who was Gottfried Liebniz and what was his view on Codification?
German prominent figure (1646-1716) 17th century
Criticized legal pluralism. The uncertainty of law arising from laws and customs
Inadequency: The law not adequate to society. Not sufficient to solve problems of society
To be in adqualification - to be in present society
We need Codification - as a means to deal with legal pluralism
Required a simple codification with briefness and clarity. To apply law and general principles
To avoid misunderstandings and confusion for judges
The rest is up to judges to develop
What were the Codifications in Europe in Early Modern Times?
Two main codifications established in XVIIth and XVIIIth centuries:
- Codification in Brandenburg-Prussia
- Codification in Austrian Monarchy
Two main codifications in XIXth century:
- French Napoleon codifications
- German codification
How was the Holy Roman Empire of the Brandenburg Prussia like?
Weakness, no central government
Had to share legislative competences with Reichtag - the assembly of the delegates of the estates of the Empire - a difficult partner
Consolidation of the situation in famous Treaty of Westphalia (1648)
In 1806 the Emperor Francis II (1768-1835) decided that the situation was untenable and officially dissolved the Empire
The political fragmentation of Holy Roman Empire was reflected in administration of justice
What were the situation of justice and legal sources in the Holy Roman Empire (Brandenburg-Prussia)
Legal pluralism: different statues and legal customs were in force in various regions and cities
Roman law acted as a subsidiary source of law, as most European countries
No hierachically organised judiciary
Creation of Reichkammergericht in Etzlar in 1495 but limited competences as a supreme court
Differences between Brandenburg-Prussia and Austria
What was the political context of Brancenburg-Prussia?
Was a conglomerate of more or less independent territories united in a personal union under the reign of Hohenzollerns
In 1700 most important domains were Brandenburg and Prussia
Hohenzollerns were allowed to use title King in Prussia in 1701, and in 1707 they ruled about 1,6 million subjects
In previous century Frederick William (1620-1688) The Great Elector had already embarked a policy of Centralization. Hohenzollern continued the consolidation of central authority
In 1723, King Frederick William I (1657-1740) established the Generaldirektorium with many competences with regard to affairs of the interior
Administration of justice remained to local authorities
Regional identities remained stronger
About 1700, a Prussian Gesamtstaatidee, a sense that the various provinces belonged together, had barely developed.
Inhabitants who spoke German were favourable to such an idea.
The Seven Years’ War (1756-1763) as the immediate cause of patrionism defended by bourgeoisie
What was the legal context of Brandenburg-Prussia?
Firstly, a failure to unify law.
Pursuit of a common law during reign of Frederick William I (1713-1740)
First attempt: the role of Christian Freidrich Barholdi, president of Supreme Court established in Berlin 1706
1712 proposal from another official to bring difficult cases before the King
1713 king ordered Barholdi to draft new regulations for the judiciary and a common law. Costs of lawsuits, legal uncertainty weakening financial situation and a risk for the state
Connection between administration of justice and Welfare state. Danish code as a model which consisted of uniform laws
But impossible to adopt the laws of Denmark. Because of the various territories enjoyed their own customs and statues, and a risk with abolishing provincial laws
Bartholdi concluded a narrow reform in procedural law which was abandoned
In 1714 he commissioned the University of Halle to draft a common law for Brandenburg. The draft of 1733 never came into force.
In Prussia - A similar project turned out successful, introduction of a revised common law in 1721, but it reinforced provincial law
Secondly, a renewed attempt to introducing a common law (1733-1740)
King appointed Samuel von Cocceji as Groskanzler, or Lord Chancellor. Submitted two memoranda in 1737. Advocated for Allgemeines Landrecht - common law for entire state
But king did not want unity of laws, he wanted the law of provinces to remain in force. The new code was to replace Roman law
What was the Silesian common law in Brandenburg-Prussia?
A proposal and draft of Codification
Frederick II first showed little interest in reforming the justice
Conquest of Silesia: First Silesian War til 1742: Treaty of peace signed in Berlin
End of 1741 Frederick II started to reorganise the government of the newly acquired territories
Cocceji was ordered to undertake the reform of the administration of justice
Dec 1741 conference with Silesian Estates: Judicial system as one of the pillars of the State
Cocceji defended a reform of substantive law in connection with both memoranda (1737)
With introduction of a Silesian common law, struggle against confusion, and he was against customary law as an autonomous source of law
Silesian state accepted to coopeate
Frederick from 1741 onwards wanted to extend codification to his entire state
What was Coccejis proposal av german common law?
July 1743, Cocceji presented the reasons for codification
Proposal to introduce a common law for the entire Prussian state, associating the provincial Estates to the process
Exclusive codification, abolition of other laws
Goals: Legal unity, security and certainty of laws
Kings position: Pragmatism and prudence, obstacles - second Silesian war
Cocceji was asked to make a new proposal. Disorder caused by amalgam of Roman law, canonical law, local german laws. Because uncertainty, lenghty, costly procedures. Defence for a german common law
What was Cocceji’s draft? Was it a success?
Project Corpus Juris Pridericiani
1749 and 1761 Two volumes: Law of property, family law, law of inhertitence
Purpose: Reduction of lawsuits, end of chaotic legislation, autodetermination of legal situation for all citizens
Exclusive codification, no more roman law as subsidiary source of law
Impossible to refer to scholar’s opinions
Cocceji had an obligation to draft a universal systema applicable to all Prussian provinces
One year granted to the provinces to hand in laws and privileges they wanted to retain. Possible confirmation by the king. Otherwise abolished
The new prussian code a sole source of law
Tried to convince representatives of local and provincial law
Content of the draft: Greater part of provisions of roman law put in systematic order. No domestic german law because of their disuse and weakness
Failure, Cocceji died and his draft faded away
What were the obstacles to such a codification like Cocceji’s?
Third Silesian War in 1756, possible opposition of Provinces
Too much based on roman law
Too much legal unity against local laws
How was the ALR (Allgemeine Landsrecht) introduced?
A resolution of Frederick II to codify Prussian law
New attempt Johann Heinrich Casimir Carmer
Carmer had carried out successfull substantial law reforms in that province
A meeting for the form of administration of justice
Ideas of Carmer: Uniformity of legislation
4 april 1780 Carmer submitted his proposal for refrom
He suggested preparing a new code. Corpus Juris did not meet present requirements
Purpose: to reduce the number of lawsuits
King’s position: Yes for such a codification, no for legal unity. Every province should have laws suited to their specific circumstances
14 April 1780 King ordered Carmer to establish a codification committe. for advantages and disadvantages with provincial laws
27 july 1780 new decree of king aim at specifying content of provincial codes - Carmer coordinator of project
Many opponents to this codification
What was the struggle with introducing ALR?
The codification was seen as the King as a subsidiary force, supplementary to the provincial codes
The Estates played a role in the process. They were now allowed to comment on the drafts for common Prussian law
Frederick II died and Frederick William II was his successor
Opposition to the codification: Freidrich Ludwig Kark Fink von Finkenstein
Said the estates would need as least 2 years to prepare their comments. This opposition failed though.
And the result was Allgemeines Gesetzbuch or ABG
What was The Patent?
A decree issued at the occasion of the publication of the code (ABG/ALR?) on its content
The purpose of the code: Putting a rational order on principles of natural law written in German
Why was the introduction or the ALR postponed yet again? (after the Patent)
A new opposition appeared to the codification - influence of conservative official on the king. Inappropriate constitutional limitations on the king
Discussion and letter between Carmer and Fink about interest of provinces
Because of intervention of the Estates of Brandenburg, the ALR was postponed
Then new interest of the code
1793, new interest in introduction of the code
- various judicial bodies had started to use the code, because practical-political nature, the Polish situation
- It was seen as an opportunity to reorganise the newly acquired domains and bring them more in line with old provinces
June 1794, the Code went into force as Allgemeine Landrecht (ALR) - it was introduced without the provincial codes being ready
Many provincial estates were reluctant to prepare a provincial code
Succesor of Carmer, Heinrich Julius Goldberg refused it be seen as a part of provincial law
What happened after the reluctance to introduce the ALR?
In 1805, the negotiations between government and Estates were broken off
1806, the Prussian state collapsed under the Napoleonic armies
ALR gradually attained exclusive force in most territories that remained Prussian
Provincial law was relegated to subsidiary force of law
Some attempts to counter this development by proposing introduction of provincial codes. Only successful in West Prussia
A situation where territories were controlled by France
What is the Political context of Codification in the Austrian Monarchy?
In 1700, the Austrian Monarchy was a conglomerate of three or less independent territories united in a personal union under the Habsburgs
They were Archduke of Austria, king of Bohemia and Hungary, Emperor or Holy Roman Empire
Estates did not have power to choose another Duke
Domains
- Archduchy of Austria, most important, which the Habsburg had ruled since end of 14th century
- Territories that belonged to Bohemian Crown: Bohemia, Moravia, Silesia.
- Difficuly to integrate the new acquired territories into the Empire, especially Czech ones
1627: Constitutional change
The three domains were governed under different titles - Detrimental for common institutions
Vain efforts of Charles VI (1685-1740). Attempt to introduce similar rules of succession in all his territories
After his accession to the throne - Maria Theresa (1717-1780), focus shifted from Holy Roman Empire to permanently the Austrian Monarchy
Diversity of cultures in Austrian Monarchy. Shared a common interest: struggle against the Turks. Lead to general assembly of the Estates
What was the Legal context of the Austrian Monarchy?
Importance of efficient administration of justice in the central power
Proposal for uniform law in private field. 1706 report that monarchy would benefit from unity
“One king, one people, one law”
In Hofkammer, Cristian Julius Schierl von Schierendorff proposed concrete reforms in public and private law
King shoudl encourage agriculture, trade and industry
Constitutional proposal. Same rules of succession to throne, unify privileges of provinces, need for a supreme court
What did Maria Theresa do after the the death of Charles VI?
The decision to make fundamental administrative reforms
- Invasion of Silesia had consequences. Maria Theresa was convinced the crisis had roots in lack of cohesion between various regions of her state
Some proposals to strengthen power of monarch at the expense of regional estates. Large opposition
- New administrative bodies: Politische Landesstellen or Gubernia which the monarch controlled
- Establishment of a codification committe or the Austrian Succession States, 1753
With cretaion of a Supreme court, application of provincial laws
Revival of codification committes, but change with vice-president of Supreme Court Otto Frankenberg. He controlled it
For unification and legal unity through anonymous work
Who worked on the Codex Theresianus? (1753-1766)
The Kompilationskommission
Order to draft a uniform codification. For interest of litigants. Getting states closer together
Limited to private law
Inspiration from natural law
What was the obstacles and results of The Kompilationskommission? What took over?
Joseph Azzoni and Joseph Ferdinand Holger were ordered to revise the draft.
Around 1760 the monarchy faced many problems: a new phasis of Silesian War and the discussed centralization of power
In 1766 the Codex was submitted to Maria Theresa
The Patent which accompanied the promulgation of the Codex provided some argument in favor of a new code. Bad with uncertainty, obscurity, diversity of existing laws
He reorganized the Gesetzbungskommission to be in charge of work on the Codex. It yielded results for fist time. Also on family law
Came into force 1 Jan 1787 as Josephinische Gesetzbuch (JBG) in the Austrian Succession States. Complete exclusive force
What was the Codification during the reign of Leopold II like? (1790-1792)
Joseph II died, succeeded by Leopold II
Different approach
Karl Anton Martini (1726-1800) new chairman of the commission
New committe suggested reconsidering provisions of the JBG which already had force of law
Evaluation of difficulties with enforcement
