Mixture of legal identities: Case of the Dutch (1838) and the Serbian Civil Code (1844)

Abstract

The paper aims to examine the differences and similarities between the Dutch Civil Code of 1838 and the Serbian Civil Code of 1844. Although the historical circumstances of the two countries, their legal culture and their legal systems at the time of codification were significantly different, the author points to some similarities between their private law codes. Based on that comparison he distinguishes a more general problem of early modern codifications in the 19th century, namely the issue of legal transfer's logic, causes and outcomes. Both in the cases of the Dutch and the Serbian codifications the predominant stereotype in literature are that they were more or less copies of the model codes (the French Code Civil of 1804 and the Austrian Civil Code of 1811, respectively). The author points out that only recently some diverse intonations started to appear on this matter, related to the two codifications. He stresses that in both cases legal borrowings were in many aspects inventive, innovative and influenced by a variety of other sources. The author based his conclusion on a comparative analysis of different legal identities present in the Dutch and Serbian codes. On that ground he revises the concept of mixed legal systems and suggests that mixture of legal identities should be more flexible, less demanding and open-ended notion.