In the 17th century ius naturale was subject to secular jurisprudence which is the reflection of rationalism in jurisprudence.
The Bavarian code (Von Kreyttmayr) was the earliest form of codification.
-Very little content regarding changes > the old legislation was mainly structured;
-Ius commune based;
Several drafts of the Code Civil were made by Jean Jacques Régis de Cambacérès between 1793-1796
In 1794 the Allegemeines Landrecht was promulgated:
-Vernunftrecht (rational law) + Roman law very influential;
-Very detailed and voluminous
-AIM: control the judge (e.g. the case of Arnold the miller >> King Frederick: ''for the people but not by the people'')
-It originally had a subsidiary role next to regular law > 1813: EXCLUSIVE APPLICATION.
-NOT IN FORCE anymore.
Why was Prussia's code an inspiration for France?
It showed what you should NOT do. E.g. judges should be given more power, they should interpret the law to a certain extent.
In 1799 Napoleon pushed through codification and appointed a 4-member commission, with 2 members from the North (Tronchet and Préameneu >customary law) and 2 members of the South (Portalis, Maléville > Roman law)
What was codified?
Global rules, limited in size.
In 1799 Napoleon staged a coup and came to power, in 1804 he became the emperor.
In the year 1811, the Austrian civil code (Von Zeiller) entered into force:
-Natural law as a source of law;
-In force in Austria;
-Withdrawn in large parts of Central EU, e.g. Kingdom of Hungaria, parts of Italy, Lichtenstein, Tsjecho-Slovakia. HOWEVER still in force in Austria.
In 1838 The Netherlands (Nicolaï..... -BE) finally got their own civil code, which was based on the French Civil Code:
-French/ Belgium outlook;
-Influential outside of EU > Surinam, Netherlands Antillies and Indonesia.
-NOT IN FORCE ANYMORE
The predecessors of the 1838 BW were:
1. Drafts by Cras;
2. Wetboek Napoleon (1809);
3. Code Civil (1811);
4. Drafts by Kemper (1816 and 1820).
In 1992 it was replaced by a new Civil Code: Nieuw Burgerlijk Wetboek >>> heavily influenced by E.M. Meijers's work.
Why is E.M. Meijers so important?
He studied and admired the BGB because it was so complicated + systematic > eventually he made a draft of the new BW, which was HOWEVER not completed due to his death.
German unification already took place in 1871 after the German-French war. But codification only took place in 1900:
-Geometrical structure: from general to specific;
-Made by Winscheid;
-Outcome of a debate between Thibaut (who wanted codification) and Von Savigny (against codification > prevented it for a while);
-Mainly the work of the Historic School / Pandektwissenschaft > AIM = law should become science.
-STILL IN FORCE
In 2007 the idea for a EU constitution was harshly rejected by French and Dutch voters in a referendum.
Hugo is seen as the founder of the Modern School of ius naturale + he secularized ius naturale by seperating it from Christianity.
Jeremy Bentham was the most important codificator. He and other codificators were influenced by teachings of the ius naturale / Vernunftrecht.
The codification period started in the 2nd half of the 18th century and lasted until around 1919.
What is codification?
The introduction of systematically organized codes of law that fully regulated a specific field of law through abstract legal rules & clear judicial organization. NOW those that were subject to the law could consult the pertinent code to find the legal rules applicable to any problem they are facing BUT this can lead to people go against the legislator's intentions.
The characteristics of codification are:
2. It is enacted by a state / on the basis of a state authority;
5. Exclusive: all old sources of law loose their validity.
What are the aims of codification?
2. Legal authority;
3. Facilitate legal education;
4. Control the judge;
5. Facilitate trade;
6. Modernisation of the law.
What are the disadvantages of codification?
IT hinders legal development (Von Savigny > codification means the end of legal development)
Why is the Corpus Iuris Civilis not a codification?
It was not systemized and when Justinian passed away there was no state authority behind the Corpus.
CONTEMPORARY PERIOD / CODIFICATION PERIOD