Politics, principles and the law

1.      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. 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. Curiously enough, the most important source of inspiration for these opponents is the German scholar Von Savigny, the undisputed leader of the historical school.

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 Code civil (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. The Austrian Allgemeines bürgerliches Gesetzbuch (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 Allgemeines Landrecht (ALR) dating from 1794 lost its force in 1900 as a result of the introduction of the German Bürgerliches Gesetzbuch (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. 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.

 

6.      The European codification

 

What lessons can be derived from the above with regard to the realisation of a European codification of private law? First and foremost, one should keep in mind that a decision to codify European private law will be made in the context of the formation of a European state, for political reasons therefore. The question whether such a decision is expedient or necessary from a political perspective is an important one, but it need not be answered here. Here we are concerned with the consequences for the law finding process in the event of a European codification. Without any doubt, such a codification will be made after the first of the two models that were described earlier. After all, the ultimate aim of the codification is to limit the legal diversity in Europe , as an integral part of the aforementioned process of the state formation. This means that the content of the European Code will be determined using the comparative law methodology. I therefore expect that the provisions of that code will be characterised by a high level of abstraction. The work that has been done in the context of a European codification so far points in the same direction. I only mention the so-called Principles of European Contract Law (PECL), drafted by the LandoCommission and published in 2000. Hesselink quite rightly remarked in his preliminary report for the Dutch Society of Private Law: ‘Probably the most important function of the PECL will be that they provide us with a common European language for discussions on contract law’.

The so-called HLS-method, the prescribed method of teaching law from a European perspective at the Hanse Law School, also points in the direction of an increasing weight of principles and thus of a growing amount of abstract rules as a result of the effort to arrive at an encompassing ius commune. After all, step two of that method requires verbalisation of the common ‘fundamental legal principles’. Moreover, this step entails the elaboration of these ‘principles’ into ‘principles of positive law’ and, more specifically, in legislation and case law. For the sake of completeness I mention that steps three and four require the legal differences which have been found to be explained in terms of the cultural and philosophical background of the various legal systems. Step five, the final phase, requires that a ius commune is formulated, as expected, on the basis of the ‘principles’ that were formulated earlier, presumably the ‘fundamental ones’.

How should we evaluate this emergence of fundamental European legal principles? Of course there is no objection whatsoever to the development of a ius commune on the basis of such principles, as long as this takes place through ‘a free movement of legal rules’, as in the proposal of Smits. The principles that will arise in this way will facilitate the comparison of law by the mere fact that they simplify the search for solutions to legal problems which already exist in the various countries. Moreover, the legal systems will certainly grow towards one another as a result of mutual influences. However, this will not provide us with a uniform European private law. A free development of a ius commune will not only be a slow process, but it will also manifest itself only in a few fields of the law. More importantly, the national rules will remain the same for the larger part. In the end, if one is determined to bring about legal unity, the legislator will have to sanction the ius commune thus developed, as happened mutatis mutandis in France by means of the Code civil. We should be well aware that a codification of the European principles of private law with a view to European legal unity will take place for political reasons and not with an eye to achieving better law. From a juridical perspective it is as good as certain that the law will not be improved, because of the mere fact that the principles will be quite vague. The significance of principles for the solution of specific legal problems should not be overrated, mindful of the remark of Bacon mentioned earlier. As was recently also argued by Peter Cane, they are not meant to solve conflicts, but rather to conceal them, for instance in the context of the realisation of national legal unity. Moreover, Dutch case law as it has been generated during the past decades will inevitably be abolished in the event of European codification. Under the aegis of a European Court a complete new case law will have to be developed to give body to the recently codified principles. It is doubtful, whether lawyers are fully aware of this (temporary) setback from a juridical point of view. Lawyers tend to focus on the question whether the proposed rules of European private law are of the same quality as the existing Dutch rules. The title of one of the preliminary reports for the Dutch Society of Private Law speaks volumes: ‘Are the Principles of European Contract Law better than Dutch Contract Law?’. This is a question that simply will not be on the minds of the politicians who will have to decide on a European codification.

I do not want to suggest that a European codification has no advantage for the legal practice at all. Inadvertently, the continental codifications of the nineteenth century resulted in a division of labour between judge and legislator, which made it possible to reconcile the exigencies of continuity and flexibility of law. However, most European countries already enjoy this advantage, so that in this respect little can be gained by European codification. Only England could benefit in this respect. It is ironic, therefore, that political resistance against a European codification is likely to be fiercer in that country than anywhere else in Europe.