Codification and the Rise of Modern Civil Law

Abstract

In the seventeenth and eighteenth centuries, the rise of nationalism and the consolidation of royal power in Europe entailed an increased interest in the development of national law and thereby precipitated the movement towards codification. The demand that law should be reduced to a code arose from two interrelated factors: the necessities to establish legal unity within the boundaries of a nation-state, and develop a rational, systematised and comprehensive legal system adapted to the conditions of the times. The School of Natural Law had a rationalist approach to institutional reform and emphasized comprehensive legal system building. Thus, it provided the ideological and methodological basis to launch the codification movement. The unification of national law through codification engendered the eventual displacement of the ius commune and thus Roman law ceased to exist as a direct source of law. But as the drafters of the codes greatly relied on the ius commune, elements of Roman law were incorporated in different ways and to varying degrees into the legal systems of Continental Europe. The first national codes designed to achieve legal unity within one kingdom were compiled in Denmark (1683) and Sweden (1734). The process of codification continued in the late eighteenth and early nineteenth centuries with the introduction of codes in Bavaria (Codex Maximilianeus Bavaricus, 1756), Prussia (Allgemeines Landrecht fur die Preussischen Staaten, 1794) and Austria (Allgemeines Burgerliches Gesetzbuch, 1811). The natural law philosophy exercised a strong influence on both the contents and structure of these codes. However, the most important codificatory event of this period was Napoleon’s enactment in 1804 of the French Civil Code (Code civil des francais).