Zeitschrift Rezensionen

Rezensiert von: Benjamin Verheye

J.M. Milo, J.H.A Lokin and J.M. Smits, Tradition, Codification and Unification Comparative-Historical Essays on Developments in Civil Law, Cambridg e/Antwerp/Portland, Intersentia 2014, 255 p., ISBN 978-1-78068-223-5 .

1 More than 200 years after Napoleon Bonaparte and his draftsmen laid down the foundations of the new French civil society into one civil code, the issue of codification has lost none of its importance. Given the developments at the European level, it makes even sense to say that it is more vivid now than ever before. As Milo, Lokin and Smits clarify in their introduction, codification is one of the central themes of their book. After providing a short history of the concept, including the Thibaut – von Savigny debate, they juxtapose two at first sight conflicting notions: codification as radical change and the law seen as highly traditional. They claim how these notions are not necessarily antagonist, which forms the basic these and the object of research of the book at hand.

2 Thus this book, composed of 15 contributions, connects codification with two other key concepts: tradition and unification. Every contribution treats one, two or all three of these concepts and their relation to each other from its own point of view, thus offering an enriching perspective on the interplay between legal development and change on the one hand and tradition on the other hand.

3 In the first contribution, Lokin focuses on the concept of codification and perceives two paradoxes. Firstly, he wonders why the enlightened 18 th century intellectuals, who explicitly considered themselves cosmopolitan and regarded nationalism pejoratively, so strongly adhered to nationalist codifications. To Lokin ’s opinion, this has to do with the contempt of those days for all that was Roman, which was considered too ‘exotic’, and the admiration for the universal alternative, namely natural law, which could best be codified. But why then, as Lokin asks secondly , were the universal natural principles codified in nationalist codifications that contained in large parts Roman law? He claims that this is caused by the philosophical nature of natural law, which is unfit for practice.

4 Consequently, quite suddenly, Lokin compares the 18 th century age of reason to current times and perceives the same paradox: our national codifications are full of Roman law, whereas we also adhere strongly – even the longer the stronger – to natural law in the form of human rights and legal principles, of which the universal nature is now challenged. However, as long as our national civil codes and other codification projects, e.g. the DCFR , remain based on Roman law, the study of Roman law, on which our civilian tradition is based, remains rewarding.

5 Jansen offers a historical view on the influence of codification on the methodology of Roman law in the Netherlands in the early 19th century. He connects the difference between the mos italicus , which applied Roman law in the contemporary setting, and the mos gallicus , which studied Roman law in its historical setting, to the distinction between the usus modernus pandectarum and the Dutch Elegant School, respectively. In examining the development of Roman law methodology and connecting it to Gustav Hugo’s work, he interestingly shows how the codification process, which challenged the up to then valid contemporary application of Roman law as positive law, as ius commune , led towards the historical study of Roman law in a neo-humanistic approach. Thus codification had and still has an important influence on legal scholarship.

6 A contribution that focuses on tradition and (constitutional) change is van der Walt ’s, on the interplay between constitutional human rights and private law in South Africa. In South Africa, codification never took place and the common law of Holland of the 17 th and 18 th century still influences legal tradition. However, since the 1990s, this legal tradition is under pressure of change: the South African Constitutions of 1993 and 1996 contain a number of provisions in favour of change, in order to make tabula rasa with South Africa’s apartheid past. This constitutional wish for change creates a tension with the private legal tradition.

7 Van der Walt studies how South African courts deal with the relationship between constitution, legislation and uncodified common law and the role of legal tradition in this respect. Thus he identifies several principles, e.g. the unity of the legal system and the principle of subsidiarity, that play a key role in this respect. Yet problems remain, a particular example of which is the resistance against horizontal application of constitutional rights.

8 At last, van der Walt points at the importance of comparative law for South African legal practitioners, as section 39 of the Constitution mentions the courts’ obligation to refer to international and foreign law. Thus van der Walt ’s contribution offers an enriching perspective to the interplay between tradition and change, taking South Africa as a case study, and is directly connected to the main theme of the book at hand.

9 As already mentioned, codification is a hot issue at the European level, where the question whether European codes are necessary is heavily debated. Both van den Berg and Heirbaut contribute to this debate. Van den Berg analyses the issue of a European civil code, briefly sketching the history of the movement and identifying arguments in favour of and against a European civil code. He points out how both sides of the debate operate on a different level of reasoning. Critics of the project raise questions of legal and practical nature. Those in favour of the code, on the other hand, develop arguments on another level. As far as content is concerned, the pro arguments reflect the historical arguments for codification: increased legal certainty for the litigant and especially, from a political perspective, creating a nation, which has beneficial effects on intra-state trade and on the creation of a political community.

10 Van den Berg analyses the pro arguments by means of the theory of constitutive rhetoric: they use a specific style and language, they refer to or establish a narrative in order to create a political community as an audience and, thirdly, they more or less neglect practical arguments. Thus Van den Berg establishes a very original approach of the arguments in favour of a European civil code and it is to be regretted that the contra arguments are not analysed in the same depth, for this would invite us to an even more enriching point of view.

11 Heirbaut originally compares the contemporary European situation to the German situation in the 19 th century. He sketches the German history of the 19 th century and thus identifies several similarities and differences with the contemporary European situation. Consequently he draws several lessons from Germany’s past for Europe’s future of codification. Firstly, to his opinion, the choice must be made for one single drafter or for a commission, both having their advantages and disadvantages, and Heirbaut is slightly in favour of a commission. In case of a commission, secondly, a good manager is required and given the complexity of the task, enough time is needed. Thirdly, although particular codes in the different member states are mostly considered to be an impediment to general codification, they can also enhance the creation of a general code, offering the draftsmen some inspiration. Consequently, codifiers of European private law will also have to be able not to touch all aspects of private law, as the member states will want to maintain several aspects for themselves, as was the case with the German states. At last, the codifiers should also try to write a code that can stand times and is not too much concerned with the contemporary problems.

12 In the end, despite the many similarities between 19th century Germany and contemporary Europe, Heirbaut honestly admits that the past never repeats itself, so that it is difficult to assess the actual importance of the German history for the European situation. Yet these lessons may have some value for the future.

13 Another perspective on tradition and unification is offered by Reid and A nderson , both having Scots law as their subject. Reid considers Scots law, as a mixed legal system, a good example of how the civil law and common law traditions can be mixed, which could be of interest for the European harmonisation project. Although the Treaty of Union of 1707 stipulated the continuation of Scots legal institutions, it cannot be doubted that a gradual convergence took place. In this respect, Reid writes about the Scots law of delict as an example of this convergence. During the 19 th century, the Scots law of delict gradually moves towards common law, which can be explained by the rise of the law of negligence and reflects the changing caseload of the courts. As far as this evolution towards common law is concerned, Reid even speaks of a ‘drift’.

14 In addition, Reid shows how, despite the lack of a civil code in Scots law during the 19 th century, the writings of some scholars, e.g. G.J. Bell’s Principles , gain “Institutional” status and thus more or less replace codes. Yet in commercial law, codification is done at the end of the 19 th century, but these unifying statutes were common to Scotland and England and thus strengthened, again, the affinities with common law. Reid finds an explanation for this Scots tendency in being open to English common in the enthusiastic participation of Scotland in the British Empire. However, the more recent separatist feelings in Scotland can lead to opposite results. Thus, for instance, Scottish legislation of 2004 has challenged the uniform law of negligence.

15 Anderson gives another example of the convergence or even harmonisation between Scots law and English common law: the Bills of Exchange Act 1882. This Act harmonised the law of assignment in Scotland and England, but Scotland retained, as a carve-out of the general rules, its funds-attached rule, which applied to Scotland alone. Sheriff Dove Wilson, one of the Scots proponents of the Act, considered this rule the consolidation of Scots common law. However, only two years later he realised he had been wrong, but it was too late: the funds-attached rule had been inserted in the Act and was considered to belong to the Scots tradition. Eventually, the funds-attached rule was abolished only in 2009. This can be considered a negative consequence of adherence to tradition, a tradition that was even wrongly conceived in this case. This is especially the case here, as this rule was codified, which enhanced the entrenchment of the funds-attached rule.

16 The force of tradition is also proven by Milo, in his analysis of the history of codification in the Netherlands. Although the old Roman-Dutch sources of law were formally abolished in the 1809 codification (WNH), some lines of Roman-Dutch law were preserved in the WNH’s content, that consisted approximately for one quarter of Roman-Dutch law, one half of French law and one quarter of local laws. Nevertheless, the WNH only gradually replaced the preceding Roman Dutch law in practice. In addition, the 1809 code was only very shortly in force, as the Netherlands was soon annexed to the French Empire. The French Code Civil entered into force in 1811 and remained in force until 1830. A real Dutch civil code was created in 1838; however, this code was largely based on the French code. This makes clear that continuity is of outmost importance.

17 Thus, as Milo points out , ‘the introduction of a codified private law was certainly not so discontinuous as it is often believed.’ This contribution has the strength that it refutes a common phrase about codification as being revolutionary from more than a theoretical perspective; it proves that tradition plays a very important role, even when change occurs. To quote Milo : ‘The channels of tradition and change provide a more meandering view.’

18 O osterhuis provides us with the nowadays indispensable Law and Economics contribution. Applying two economic theories, namely competition theory and game theory, he analyses the convergence and unification of contract law, e.g. in respect to non-performance and immediate default, in 19 th century Europe.

19 Given certain circumstances, e.g. cross-border trade, competition between legal systems can result in converging legal rules, of which Oosterhuis gives some particular examples. To obtain unification, it is necessary, in the reasoning of game theory, that one party can coordinate the game’s outcome, e.g. Prussia for the Allgemeines Deutsches Handelsgesetzbuch . Consequently Oosterhuis compares his historical examples to contemporary European commercial sales law: he sees a future role for European institutions, such as the European Commission, to fully unify European sales law.

20 An area of law that has already been harmonised to a large extent on European level is consumer law. Kresse researches the role the Court of Justice of the European Union has played to strengthen the position of the consumer in respect to his claim for replacement in case of delivery of non-conform consumer goods. K resse criticizes the Court for not taking sufficiently into account the contractual equivalence agreed upon by parties.

21 Although being a good example of harmonisation, this contribution somewhat lacks a more direct link to the general theme of the book.

22 Parise and Momberg focus on codification in another part of the world: Latin America. This book could not lack contributions on this subject, as codification is of major importance on this continent. Both contributions constitute a good introduction to the subject, both exotic and familiar at the same time.

23 Parise perceives three generations of codes in Latin America, all having their own particularities. Whereas first generation codes (1816-1916) reflect a clear harmony, as they are more or less derived from the same European codes, second generation codes show more differences, for states had by that time had the opportunity to implement norms specific to their own situation in order differentiate themselves from other Latin American countries. The movement from first to second generation codes is driven by external elements, resulting in revision, de-codification or re-codification. Parise argues how a third generation of codes may be on its way; however, it is too early to give some particular examples. Regional harmonisation may motivate the creation of these third generation codes.

24 Momberg focuses on this regional harmonisation in Latin America and he gives a rather negative view: most harmonisation projects, either through private international law, or through integration in different initiatives, have failed. Yet hope springs eternal: soft law gains more importance, MERCOSUR (a regional integration project) is strengthened and, at last, legal scholars are getting involved in the harmonisation process.

25 Mahé consequently takes us back to the European continent, on which codification is still of importance on the national level too. Mahé discusses the French tort law reform and the related re-codification attempts, focusing on the Terré tort draft.

26 In doing so, he analyses the role French tradition and comparative law both play in this project, giving very particular examples.

27 This contribution offers the perfect image of contemporary codification and the legislative and comparative – the Terré draft found inspiration in, amongst others, the DCFR – process underlying it. However, it focuses more on the content of the Terré draft in particular, than on the larger concepts of tradition and codification, which can be regretted.

28 Grosheide approaches both national codification and international harmonisation at the same time. Analysing the history of intellectual property law in the Netherlands, he shows how this area of law has not been codified in the Dutch Civil Code of 1809 or 1838, but was the object of separate statutes during the 19 th century. A consequence of this is that intellectual property law and civil law have been diverging for a long time in those days.

29 However, during the 20 th century, new national statutes were promulgated and new international conventions were concluded between states. These developments leaded to a further fragmentation of intellectual property law in the Netherlands. Attempts to codify this area of law in book IX of the new Civil Code have not succeeded up to now. Yet the Civil Code deals indirectly with intellectual property law, having as a consequence that Dutch legal practice of intellectual property law is in line with the general structure of the Civil Code.

30 Thus the necessity of separate codification is to some extent relativized. Nevertheless, Grosheide declares himself in favour of incorporation of at least the general principles of intellectual property law in the Civil Code, which should implement the international and European developments.

31 Smits provides the last contribution of this book, being very critical towards the concept of codification. Thus he forms the necessary critical voice in this book, which is refreshing after the previous contributions and therefore very welcome. To his opinion, this concept of codification is completely out-dated. Referring to Maillet’s functions of codes, Smits considers that the major current function of codes is to provide information about the law. C onsequently he argues that in our information age, this function can much better be fulfilled by other means than state-made codes, for nowadays, many sources of law exist in our multi-layered private law and parties have the freedom to make choices concerning law. This makes codes impossible as a good form of information management.

32 Smits proposes different ways of information management than codes, taking into account which information is provided, how it is presented and who provides it. New technologies can be used in this respect. Thus he makes some suggestions towards alternative models of legal information management.

33 Tradition. Codification. Unification. The contributions in this interesting book all concern one ore more of these concepts. However, in some contributions the link with the general theme could have been made clearer. It is therefore a good thing that Milo, Lokin and Smits have written an introduction that connects all contributions in a logical order to each other, thus clarifying the general theme of the book.

34 It is of great value that a diversity of approaches is represented in this book. This variety contributes to the avoidance of a one-sided or prejudiced view that would take one particular side in the debate. This encourages the reader to form his own opinion, based on scientifically valuable arguments from all sides. A combination of historical and comparative methods, applied by scholars having earned a reputation in their own fields, assures the high quality of the result of every contribution’s research. To be able to fully understand the book’s general theme, it is absolutely necessary to read all contributions as one book, i.e. not as separate contributions. Only this way the book can be fully appreciated, as it deserves.

35 Tradition, Codification and Unification. Comparative-Historical Essays on Developments in Civil Law contributes without any doubt in an original and valuable way to the study of the European ius commune and therefore deserves attention and critically reading by interested scholars, students and legal practitioners.

Rezension vom 06. Oktober 2015
© 2015 fhi
ISSN: 1860-5605
Erstveröffentlichung
21. August 2015

  • Zitiervorschlag Rezensiert von: Benjamin Verheye, J.M. Milo, J.H.A Lokin and J.M. Smits, Tradition, Codification and Unification (06. Oktober 2015), in forum historiae iuris, http://www.forhistiur.de/2015-08-verheye/