Codification and the formation of nation-states

Four European states introduced codifications between 1794 and 1809: the Allgemeine Landrecht (ALR 1794) in Prussia , the Code civil (Cc 1804) in France , the Wetboek Napoléon ingerigt voor het Koningrijk Holland (WNH 1806) in The Netherlands, and the Allgemeine bürgerliche Gesetzbuch (ABGB 1811) in Austria . The introduction of these codifications signalled a departure from the prevailing legal doctrine, in which legislation, as a general binding rule drawn up by the government, was only one of the many formal sources of law, next to the bible, Roman law, canonical law, customary law and local statutes. The introduction of these codifications established the monopoly of the state on the making of law. This exclusive authority to legislate became the mode of expression of national sovereignty. An important administrative instrument, the statute, thereby became more effective and this was crucial to the development of the modern Western European states in the nineteenth and twentieth centuries. Various considerations led to the establishment of this monopoly through codification. The arguments used for the introduction of the continental codifications fall into three broad categories: practical-political, political-theoretical and juridical arguments.

The practical-political argument was used when a uniform codification was championed with the interest of the state in mind. It was argued that the state incurred damage as a result of the diversity of law and legal uncertainty. First, economic growth was stifled by a faulty judicial system. This was considered detrimental to the state as lack of economic growth was commonly believed to limit its revenues. Second, it was held that the diversity of law hampered the development of a sense of community among a state’s citizens.

The political-theoretical argument in favour of codification originated in the struggle of the nobility and the bourgeoisie to protect themselves from the unpredictable infringements of their rights by the government. A new codex would give citizens certainty about their rights and duties.

The juridical argument relates to the individual who wants to obtain a smooth and affordable settlement of his legal disputes. The diversity of law, the complex doctrine of sources of law, and the resulting legal uncertainty hindered such a prompt settlement. Many believed that a new codification would change this.

The French Revolution constituted a major watershed in the European history of codification. Before the revolution, the political-theoretical argument hardly played a role at all. The primacy of the practical-political argument was evident. After the revolution, the political-theoretical argument became dominant, ultimately giving way again to the practical-political argument, albeit in a totally different constitutional state of affairs.

 

1          The Ancien Régime: the primacy of the practical-political argument

 

1.1       The German territories

 

The striving towards codification in the German territories was closely linked to a political-economic theory known as ‘cameralism’. The cameralists were impressed by the strength of the French state, which they attributed predominantly to the mercantilist policy of Jean-Baptiste Colbert (1619-1683). However, they interpreted the mercantilist theory in their own way. They directed the ideas of their French counterparts more towards law and administration, emphasising that the state needed to promote a strong economy by improving its governmental organisation. Uniformity became an ever more obvious objective. Cameralism as an academic discipline was on the curriculum of the faculties of law. Therefore, the administration of justice as an essential part of the administration received much attention. Reflection on the benefits of a codification arose especially in those cameralist circles. The cameralists exerted much of their influence through the education of civil servants, who later on became part of the royal bureaucracy.

a)         Prussia

 

From a formal point of view, the ALR (1794) had two important features, namely the exclusiveness and the preservation of the diversity of law. The codex was an attempt to reform the doctrine of the sources of law, establishing the supremacy of legislation. The ALR was given subsidiary force only, while the primary force was awarded to the provincial codices. However, this resulted in the invalidation of sources of law other than the ALR and the provincial codifications. The statute became the exclusive source of law at the expense of customary and civil law. Thus, the Prussian monarchs assumed legislative authority and the realisation of the ALR can therefore be considered an important political victory for the central government. After all, the government now monopolised the process of law-making.

During the reigns of Friedrich Wilhelm I and his son Friedrich II, the practical-political argument was crucial in the decision-making process concerning the codification,. The political-economic ideas advocated by the cameralists were very influential at the time. Friedrich II’s famous decision of 1780 to introduce a codification, which was based on a proposal of the civil servant Johann Heinrich Casimir Carmer (1721-1801), also arose from these cameralist ideas. While practical-political considerations thus gave the initial impetus to the plans for codification, both kings were rather reticent about using codification as an instrument for state-making. They were not set on using codification to strengthen ties among the separate provinces of their state through uniformity of law. Such ideas were cherished by their civil servants, but the kings themselves were less enthusiastic. They approached their bureaucracies’ pursuit of uniformity with some scepticism.

            This reticence of the Prussian monarchs resulted from the fact that they did not want to change the existing structure of the state. The reorganisation of the Prussian state had been launched much earlier than that of the Austro-Hungarian Empire and it had been far more successful. Therefore, Prussia had no major problems with recruiting and financing an army, the two major concerns of a monarch. As a result, a radical reform was less urgent than in Austria . The civil servants did not share their monarchs’ reasons for restraint, though. They were in a different stratum and had a more abstract vision of the state. They thought that the most important task of the monarch was to make the state more efficient and more powerful by far-reaching rationalisation of the government. However, the Prussian kings, Friedrich Wilhelm I and Friedrich II, resisted being spoon-fed by these civil servants. Therefore, the bureaucrats had to endure the monarchs weakening their proposals for codification. They did not always accept the restrictions imposed on them, however. In the middle of the eighteenth century, for example, Samuel Cocceji (1679-1755) went beyond the strict boundaries of the task set in his efforts to realise a uniform codification. Thirty years later Carmer, a proponent of legal unity for practical-political reasons, failed to persuade Friedrich II to commission him with the task of creating a uniform codification. Yet, during the practical work on the codification, he tried to achieve the desired result in more secretive ways - and with more success.

 

b)         The Austro-Hungarian Empire

 

In the seventeenth and eighteenth centuries, the Austro-Hungarian Empire was a deeply conservative state in which the counter-reformation had been a resounding success. Nevertheless, Empress Maria Theresia, although firmly rooted in the seventeenth-century political and religious traditions of her country, decided upon a radical policy of codification in 1753.

            The idea of breaking the old constitutional structure and welding the separate provinces of the monarchy together by means of legal unity was not completely new. At the beginning of the century, civil servants in the central bureaucracy had put forward ideas on the connection between legislation, economic prosperity, and the power of the state. The emperors Leopold I and Karl VI had paid little attention to their plans. From a political perspective, they could afford to ignore them: the French threat had been neutralised and administrative reforms did not seem necessary. However, in the middle of the eighteenth century, the position of the Habsburg Empire in the interplay of forces in Europe had changed dramatically. The monarchy had great difficulties executing an effective financial and especially military policy, due to the weakness of the central government. When the Austrian war of succession broke out in 1740, this weakness proved almost fatal. Immediately after the end of the war in 1747, Maria Theresia decided therefore on a fundamental reform of the structure of the state; she assigned the key role to her civil servants led by Friedrich Wilhelm Haugwitz (1700-1765). The cameralist ideas were still alive in the bureaucracy and the reforms carried out by Haugwitz reflected them: expansion and rationalisation of the powers of the central government. The uniform codification on which the Empress decided in 1753 at the instigation of Haugwitz was also part of these reforms. It was based on the same raison d’état considerations of increasing cohesion among separate provinces. Her decision to codify was therefore much more radical than the efforts at codification of the Prussian kings. Maria Theresia wanted to use the codification to tie the separate provinces together more closely by removing any differences in the realm of law. There was only one restriction: the codex was not to apply to Hungary , because that province was linked to Austria only in a personal union.

 

1.2       France

 

In Europe , France was leading the process of state-making. Thus, in the fifteenth and sixteenth centuries, legal unity was occasionally argued for, among others by King Louis XI and Charles Dumoulin (1500-1566). Their suggestions did not result in concrete plans for a codification, however. The central government had to strengthen its grip on the country by creating its own bureaucracy first. The development of a uniform law was in the hands of a few legal scholars, working on a droit commun français on the basis of the existing customary law, mainly the Coutume de Paris. In the middle of the seventeenth century, centralisation had advanced and Louis XIV had become the undisputed ruler of France . His reign witnessed the first elaborate proposals for a uniform legislation. They were obviously drawn up by civil servants, led by Colbert. They used the two practical-political arguments that were characteristic of the cameralists. The King himself did not endeavour to create legal unity, however. In the end, Colbert abandoned the idea of suggesting such a proposal to his King.

            In the eighteenth century, the royal authority was considerably weakened, due to the minority of Louis XV. During this period, Chancellor Henri d'Aguesseau (1668-1751) introduced a few ordonnances, regulating some matters of private law, but he was driven by juridical motives and did not aim at complete legal unity. After Louis XV took over the government from the regents, there was one attempt, in 1770, to counter the growing particularism and to use the law as an instrument for this. Again it was one of the civil servants, chancellor René-Nicolas-Charles-Auguste Maupeou (1714-1792), who contemplated the introduction of a uniform codification in order to put the process of law-making completely in the hands of the central authority. In this period, however, attention to codification came predominantly from the public. Various authors argued in favour of a uniform codification as a means to enlarge the power of the monarchy. Theirs were practical-political reasons, but in the course of the eighteenth century the emphasis shifted to the political-theoretical arguments.

 

1.3       The Dutch Republic: codification in a confederation

 

Before 1795, there were no serious attempts at codification in the Dutch Republic : the provinces were sovereign, also in the field of private law, and the Republic lacked a strong, central government, and especially a central bureaucracy, that could initiate the development of a uniform codification. In the seventeenth century, there was no reason at all to change the confederative constitution. The Republic was considered to be one of the most successful states in Europe and served as an example for other states. When in the eighteenth century the power of the Dutch Republic eroded, neither the politicians, nor the theoreticians sought the cause thereof in a lack of central authority, but rather in an alleged abandoning of the particularist principle. Restoration of the true confederation was the common goal. The only debate centered on the questions what this confederation had looked like and how it should therefore be reshaped. If a codification was advocated at all, this was either for juridical reasons, or based on political-theoretical ideas. Such motives were insufficient to challenge provincial sovereignty. More radical political changes were needed for that.

 

2          Codification and freedom: the political-theoretical argument

 

During the Ancien Régime in Austria , a uniform codification was realised in the course of which the practical-political argument was decisive. In Prussia practical-political considerations played a less important role, which resulted in a codification that spared the diversity of law. By that time, it was no longer contested in either Austria , Prussia or France , that the exclusive authority to make national statutes was vested in the King. Only in the Dutch Republic , with its constitutional structure founded on late-medieval principles, was the absolutist point of view not voiced at all. In the course of the eighteenth century, the resistance to absolutism grew, especially in France, where that resistance fed a prolonged debate on the concept of ‘freedom’ that ended in a plea for political freedom with great consequences for the issue of codification. At the end of the eighteenth century, political-theoretical arguments governed the codification issue, again especially in France, but also in the Dutch Republic, both countries in which the Ancien Régime was brought down by revolutions.

 

2.1       Corporative political freedom

 

In eighteenth century France , the attention given to the concept of ‘freedom’ meant a setback for those who aimed for legal unity. The nobility and the old bourgeois elite represented in the Parlements, in particular the noblesse de robe, renewed their claims to part of the sovereignty with a plea of ‘medieval liberty’, a concept of freedom in which independent local and provincial organs played a major role. The constitution of the Dutch Republic was based on the same ideal of freedom and this ideal had also hampered the development of an effective movement towards uniformity of law. As a result, the Parlements opposed the efforts of the civil servants towards legal unity. Even after the revolution, the idea of ‘corporative freedom’ was far from being superseded. Under the influence of the American Revolution, this idea was even given a facelift in the form of federalism and gained many adherents in the Constituante.

            In Prussia and the Habsburg monarchy, the plans for legal unity encountered no overt opposition arising from the idea of an independent organisation of the estates in the separate provinces. By contrast with the situation in France , the monarchs were still powerful and censorship was working efficiently. The Dutch Republic had not had absolutist rulers for a long time. Here, the religious troubles in the sixteenth century had resulted in a victory for the particularistic forces. As a consequence, the medieval concept of freedom was still very much alive. In their strife with the House of Orange, the regents accordingly referred unremittingly to what they called ‘true freedom’, the sovereignty of the separate provinces and even cities. Any development in the direction of a stronger central government was thus thwarted from the beginning. After 1795, this point of view was adopted by the federalists, who thereby managed to obstruct the realisation of a uniform codification for years.

 

2.2       Civil freedom

 

In bourgeois circles, especially in the states under absolutist rule, the interest in corporative freedom was limited. There, a different interpretation of the concept of ‘freedom’ predominated in the eighteenth century, in the form of so-called ‘civil freedom’. The main point of this ‘civil freedom’ was no longer the independence of local and provincial corporations. Now, the single individual was brought into focus. The concept of ‘civil freedom’ was based on the thought that originally human beings had joined together by means of a social contract and thereby had given rise to a civil society. The objective of this civil society was the realisation of the rights of individual persons. However, ‘civil freedom’ could be achieved in several ways. First of all, the negative consequences of a strong government could be limited by a separation of powers. In the theory of the separation of powers, all the political functions of the central government were to be classified as either judicial, executive or legislative and were subsequently to be separated from each other. Secondly, the liberties of the individual citizen could be protected by focussing on statutes, which could, for instance, lead to the acceptance of the principle of nulla poena sine lege.

 

a)         Freedom by separation of powers

 

The theory of the separation of powers encouraged the pursuit of codification. Although it was aimed against the absolute monarch and his efforts to monopolise all functions of the state, it could also be used to reconcile the attempts to centralise the government with the ideal of freedom. After all, freedom in a centralised state could be guaranteed by securing that the three distinctive powers of the state were not wielded by the same organs. This notion considerably weakened the argument of the federalists that the pursuit of centralisation and uniformity was not compatible with the realisation of ‘freedom’. Prussia considered the separation of the executive from the judicial process by a ban on the Machtsprüche, the interferences of the king in the judicial process. The idea was that the judges should no longer be subjected to arbitrary decisions of the king, but should only be guided through general rules coming from the legislator. A codification was an appropriate means to bind the judges to the statutes.

            Still, the theory of a separation of powers was not decisive in the struggle for codification. Therefore, the Prussian, French, and Habsburg monarchs did not implement this theory during the Ancien Régime; nor did it give any real impetus to the move for codification in the revolutionary period.

 

b)         Freedom as an individual legal certainty

 

A codification based on the principle of separation of powers was primarily directed at the judiciary, not at individual citizens. Those who interpreted freedom as legal certainty for the individual disagreed with this. They intended to limit the power of the government by reasonable statutes, which had to be clear, so that the citizens themselves could interpret them. In this way, they aimed to provide the absolutist monarchy with a new foundation of legitimacy, based on rational authority rather than the droit divin. Because the striving towards individual legal certainty posed no direct threat to the interests of the nobility and the clergy, members of these two Estates in France could be won over to this version of the concept of ‘freedom’. They too wanted to protect life, liberty, and property -  including their own privileges - against arbitrary interference from the central government. In the Dutch Republic , such an interpretation of the concept of ‘freedom’ was hardly necessary. There, corporative freedom had retained much of its cogency.

            Legal certainty for the individual citizen was a strong argument for codification. This argument, together with the juridical argument, was dominant in the cahiers de doléances, which the delegates took to the Estates General in 1789. They contained hardly any  practical-political arguments for the pursuit of uniformity of law. This may be related to the fact that in the eighteenth century the French state was hardly ever threatened in its existence. It had no need for sweeping reforms for practical-political reasons, contrary to the Austrian-Hungarian monarchy. During the French Revolution, this Voltairian ideal of ‘civil freedom’ became an important motive for the first revolutionary attempts at a codification of private law. However, these proposals based on political-theoretical arguments did not have the desired effect, because an energetic government with practical-political aims was lacking.

            In the German territories, the concept of ‘civil freedom’ had caught on in the eighteenth century, but the new French conception of political freedom had not. The absolute sovereignty of the monarchy was not subject to debate, which was not surprising given the tight governmental censorship. The middle classes lacked the self-confidence to bring about change. In the Dutch Republic , political ideas on civil freedom were hardly developed either, not because the middle class was too weak, but because it was already well emancipated. Most of the regenten, the regents, were members of the bourgeoisie, which thereby already had access to power. Moreover, they tried to legitimise that power by giving their own interpretation of the old Dutch concept of ‘true freedom’, characterised by the independence of the separate provinces. After the revolution of 1795, the influence of the French theories increased rapidly and the new French concept of ‘freedom’ became widely accepted.

 

2.3       After the Ancien Régime: national political freedom and the revolutionary codifications

 

At the end of the eighteenth century, a radicalisation occurred in middle-class circles, in which France took the lead again. Most of the delegates to the Estates General, where the commoners participated as the Third Estate, tried to keep their political views within the existing constitutional limits as much as possible. For them, the realisation of the idea of ‘civil freedom’ was the most important aim. However, some radical reformers, such as Emmanuel-Joseph Sieyès (1748-1836), were not satisfied with such a moderate stance. They demanded a dominant position for their Estate. Eventually, the Estates in France were not threatened until the Third Estate started to found its political claims on Rousseau’s modern idea of one sovereign nation. This emerging concept of ‘political freedom’ had far-reaching consequences for the struggle for codification.

            Although it may seem peculiar, the push for political freedom was sometimes at odds with the plans for a uniform codification. Neither the idea that the nation was essentially one body, nor the principle of popular sovereignty, the two pillars of the new political theory, actually provided an answer to the question of how that sovereignty, and thus the authority to legislate, should be exercised. The question of who should have the power to make the statutes gave rise to serious differences of opinion. Some radical democrats agreed with Rousseau’s view that popular sovereignty was not compatible with the concept of representation. They therefore disagreed with the important role that centralisation had bestowed on statutes introduced by the people’s representatives. Subsequently, they occasionally even returned to the concept of customary law. In their opinion, only customary law made by the people was compatible with the idea of popular sovereignty. Most politicians, however, did not consider direct democracy a realistic solution and opted for representation. Even so, some politicians proposed the federalist view that the local population be given influence over legislation through local representative bodies, in order to do as much justice as possible to the theory of popular sovereignty. However, as soon as popular sovereignty was shaped in this way, legal unity was threatened. Some supporters of this unitystrongly opposed this view therefore, using political-theoretical arguments. They contended that the authority to legislate had originally resided with the people, but this authority had subsequently been temporarily transferred to elected representatives, who therefore had the exclusive authority to legislate. They emphasised that the nation was one and therefore could have only one intention and one voice, which had to be expressed by the central government. This argument, based on the idea of national political liberty, powerfully supported the pursuit of codification and became successful when it was closely connected to the practical-political argument.

 

a)         France

 

With the French Revolution, and in particular with the transformation of the Estates General into the Assemblée Nationale Constituante, the French constitutional structure changed considerably, inspired by the theories of  Rousseau, who had emphasised the importance of social and political equality of citizens as a means to create cohesion in a state. In this way, he closely linked the political-theoretical and practical political considerations. During the Revolution, the theory was brilliantly voiced by his intellectual heir, Sieyès. Sieyès very successfully argued in favour of the idea of ‘one nation of equal citizens’: in August 1789 the Constituante put an end to the old regime by abolishing both the provincial and the individual privileges. In the ideas of Sieyès, like in Rousseau’s theory, there was a close connection between the theory of popular sovereignty and the importance attached to the raison d’état. Sieyès therefore passionately advocated the introduction of a uniform codification. In the Constituante, however, the pursuit of civil freedom was predominant and during the first years of the Revolution its activities were aimed at securing the achievements of the Revolution. For several years, arguments for a codification could be heard in the Constituante, but these were driven by the desire for the realisation of the ideal of ‘civil freedom’, not by raison d’état. These first revolutionary efforts at codification made it clear once again that the lack of a practical-political necessity stood in the way of their success. Only from the year 1792 onwards, when the foreign threat increased, did the interest of the state become an important argument for codification. In this period, serious attempts were made to achieve it. After 1795, when the war went smoothly for the French, the fierceness of their patriotism subsided, while at the same time the central government was weakened by discord. As a result, the idea of a codification also moved to the background, only to return after the Napoleonic coup d’état of the 18^th Brumaire. With the arrival of Napoléon, the interest of the state was again the most important argument, and since his position was not, like that of the monarchs during the Ancien Régime, inextricably linked to the privileges of the provinces and of the three Estates, the completion of a uniform Code civil (1804) was only a matter of time.

 

b)         The Dutch Republic

 

In 1795, when the so-called patriots came to power in the Republic, the establishment of a unitary state was by no means certain. An influential part of these patriots, those originating from regent families, held a firmly federalist view of the state. The proponents of a unitary state, who took their ideas mainly from France , formed a noisy minority. The result was a fierce dispute among the patriots on what kind of constitution should be chosen for the Republic: federalist or unitarist. The realisation of a codification nevertheless seemed to be possible for some time.

The unitarists supported this view using the political-theoretical argument that the sovereignty resided with the undivided Dutch people. Moreover, they considered a uniform codification as an excellent means to weld the separate provinces together and thus to enlarge the strength of the state. The hard-pressed international position of the Republic in the second half of the eighteenth century only reinforced this opinion. The federalists were also broadly supportive of a codification, although they mainly produced juridical arguments for their view. Both sides drew attention to the political-theoretical importance of a codification in the realisation of civil freedom, a constantly recurring idea that was taken from elsewhere.

A majority in favour of codification could thus be formed in the National Assembly. However, problems arose when it became clear that most of the federalists did not want a uniform codification. This resulted in a stalemate that was seemingly ended in January 1798 by a coup d’état. However, despite the fact that the Constitution of that same year, the Staatsregeling 1798, had a provision on codification, a codex was not realised. The main reason for this was that the conflict between federalists and unitarists, although subdued, was still unresolved. The rapid succession of several Constitutions bares witness to this. Not until 1806, with the ascension of Lodewijk Napoléon as King of the Netherlands , was the problem of the form of government finally solved. Napoléon realised that the Batavian Republic would be of greater military and financial use to him if it had a unitary government. Thus, the uniform WNH (1809) was introduced. A codification could obviously only come about when a powerful sovereign was convinced of its practical-political significance.

 

3          Codification and the legal practice: the juridical argument

 

In all four countries examined here, the interests of the litigants were regularly produced as an argument for codification, especially in the eighteenth century. Sometimes the theory of natural law was an important source of inspiration for it. This natural law theory was particularly useful to resist those who used the climate to explain legal diversity and therefore turned down a uniform codification. These opponents of codification also wanted to promote the interest of the litigants, but stressed the importance of a law adapted to their specific living conditions for this reason. They thus used the juridical argument to preserve the existing legal diversity. The proponents of legal unity rejected the explanation that the existing diversity of law was a result of differences in climate. They traced the diversity of law back to the fragmentation of sovereignty in the feudal era. They themselves believed in the existence of a universal natural law. Because the central government had recouped sovereignty from the local feudal rulers, they saw no impediment to the introduction of a uniform law.

            However much the pursuit of a better law promoted the idea of a codification, it never produced a result. By itself, the juridical interest was seldom regarded as important enough to remove constitutional barriers.

 

4          Conclusion

 

The arguments used for the introduction of the continental codifications fall into three broad categories: practical-political, political-theoretical and juridical. This study shows that the struggle for the continental codifications would not have been successful if only political-theoretical or juridical arguments had been used. Neither the argument that a codification could secure the freedom of the citizens, nor the argument that a codification would provide a smooth and affordable settlement of legal disputes proved to be of decisive importance. It was the practical-political argument that was indispensable. The continental codifications were introduced to establish the monopoly of state on the making of law with the interest of the state in mind. Three of the four codifications were intended to create a cohesive state and these three therefore specifically aimed at legal unity.