Politics, principles and the law.
Or how a European codification will affect our legal systems
Peter A.J. van den Berg*
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.1 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.2
Curiously enough, the most important source of inspiration for these opponents is the German
scholar Von Savigny, the undisputed leader of the historical school.3
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.4 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.5 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.
*
1
2
3
4
5
Dr. P.A.J. van den Berg, Senior Lecturer, Department of legal method and history, University of Groningen. This text
has been published before in the Hanse Law School Cahier 2 (Groningen/Bremen/Oldenburg 2002), 107-123.
Cf P.A.J. van den Berg, ‘Staatsvorming zonder codificatie. Een vergelijking tussen het codificatiestreven op het
continent en in Engeland, met bijzondere aandacht voor Jeremy Bentham en Henry Peter Brougham Bentham’ in: C.J.H.
Jansen en M. van de Vrugt (eds.), Recht en geschiedenis (Nijmegen 1999), 11-30, here 23-24.
A.L. Diamond, ‘Codification of the law of contract’ in: The modern law review 31/4 (juli 1968), 361-389, here 380-381.
M. Amos, ‘The Code Napoléon and the modern world’ in: Journal of comparative legislation and international law 3rd
series 10 (1928), 222-236 (224). I. Englard, ‘Li v. Yellow Cab Co. –A belated and inglorious centennial of the California
Civil Code’ in: California Law Review 65 (1977), 4-27, here 17. D. Howarth, ‘The general conditions of unlawfulness’
in: A.S. Hartkamp e.a.(eds.), Towards a European civil code 2 (Nijmegen 1998), 397-430, here 401.
M. Reimann, ‘The Historical School against codification: Savigny, Carter, and the defeat of the New York Civil Code’
in: American Journal of Comparative Law 37 (1989), 95-119, here 103-106. R. Pound, ‘Codification in AngloAmerican law’ in: B. Schwartz (ed.), The Code Napoleon and the common-law world (New York 1956), 267-297, here
284-285. M.H. Hoeflich, ‘Savigny and his Anglo-American disciples’ in: American Journal of Comparative Law 37
(1989), 17-37, here 36.
The same is true for Belgium, where the Code civil is still in force.
The European Parliament seems to be determined to make that move. W. van Gerven, ‘A common law for Europe: the
future meeting the past?’ in: European Review of Private Law 9 (2001), 485-503 (495). O. Lando, ‘Principles of
European contract law. An alternative or a precursor of European legislation’ in: Rabelszeitschrift 56 (1992), 261-273
(264-265). W. Tilmann, ‘Zur Entwicklung eines europäischen Zivilrechts’ in: W. Jagenburg, G. Maier-Reimer and T.
Verhoeven (eds.), Festschrift fürWalter Oppenheim (München 1985), 495-507. W. Tilmann, ‘Zweiter
Kodifikationsbeschluß des Europäischen Parlaments’ in: Zeitschrift für europäisches Privatrecht 3 (1995), 534-551.
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.
2. Why the continental codifications were introduced
The interests of the litigant were, of course, regularly adduced as an argument for
codification. However, the interest of the individual who wanted a smooth and affordable
settlement of his legal disputes was seldom regarded as important enough to justify
embarking upon the arduous project of codification. The major continental codifications were
not motivated by the pursuit of a better law, nor by the wish to make the law better known
and more certain. In other words, the (potential) litigant played a relatively small part in the
decision process on codification. This conclusion also entails that natural law theory should
not be regarded as the master of codification, contrary to what is still frequently maintained
especially following German authors such as Thieme and Wieacker.6 Among natural law
theoreticians the opinion was widespread that the law should be systematised. This, as well as
the idea of improving the law, could, of course, be used as an argument for codification.
These arguments were produced and certainly exerted some influence. However, they seldom
proved to be decisive. This is connected with the fact that from a juridical perspective a
debate on codification is little more than a internal-juridical discussion on the question
whether a code would prove helpful to those entrusted with the law finding process, a
question which is rather difficult to answer. I will elaborate on the process of law finding with
and without codification later.
Rather, the introduction of these codifications was determined by their function in the
process of the formation of states.7 As it happens, the three codifications brought about a
sweeping change in a political situation which was considered undesirable. An important
feature of the codifications mentioned was precisely their exclusive force. Together with the
introduction of these codifications, statutes were declared to be the sole formal source of law.
The central government thus established a monopoly on the making of law within its own
territory, not unlike its monopoly on violence which was realised some centuries earlier. The
states on the continent had ample political reasons to empower the legislator exclusively to
make law. Around 1800, the continental states were ridden with substantial internal legal
diversity, which was considered detrimental to the development of a sense of community
among the citizens of the same state. A hundred years later, this was still true in the case of
the then recently formed German Empire, reason enough to introduce the BGB.8 The ALR
constitutes the only exception in this respect.9 The Prussian King Friedrich II had explicitly
ordered the codification of the law of the separate provinces and the provincial systems of law
would thus retain their primary force. The ALR would only be given the role of a subsidiary
codex, which was not surprising since the realisation of legal unity was intended. Moreover,
the introduction of it had hung by a hair. Only the necessity to provide the recently annexed
territories in Poland with Prussian law, a clearly political reason, saved the ALR from meeting
an inglorious end.10
6
7
8
9
10
Cf P.A.J. van den Berg, ‘De rol van rechtswetenschap en raison d’état bij het streven naar codificatie in Engeland,
1530-1625’ in: Groninger opmerkingen en mededelingen 16 (1999), 1-42, at 1-7, where the role of the natural law
theory and the interest of the state in codification is dealt with more extensively.
P.A.J. van den Berg, Codificatie en staatsvorming (PhD Groningen 1996).
F.H. Lawson, ‘A common lawyer looks at codification’ in: Inter-American law review 2/1 (1960), 1-6, here 1.
Van den Berg, Codificatie en staatsvorming, 83-84.
Van den Berg, Codificatie en staatsvorming, 101-102.
3. The characteristics of the unifying codifications
In the early nineteenth century, the codifiers were confronted with a problem not very
different from the one the eventual European codifiers will encounter. They had to create a
law based on the various and divergent legal systems which were in force within their
respective countries until then. Fortunately a lot of preliminary work had already been done in
the preceding centuries. In France especially legal scholars had developed a ius commune
using the method of comparative law. The drafters of the Code civil could and in fact did fall
back on this so-called droit commun français. This had consequences for the character of the
codification, since the method of comparative law necessarily involves the use of abstract
legal concepts.11 The new rules have to be formulated in a rather abstract wording in order to
encompass all existing legal arrangements, including judicial decisions, however detailed and
different. The various concrete solutions of legal problems were ‘aufgehoben’ on a higher
level, to use a phrase of Hegel. Or, as described by the authors of the standard book on
comparative law, Zweigert and Kötz, in the English translation of Tony Weir: ‘The system
must be very flexible, and have concepts large enough to embrace the quite heterogeneous
legal institutions which are functionally comparable’.12 Indeed, it is much easier to formulate
general principles than to reconcile effectively and codify a great number of judicial decisions
from various legal systems.13 Moreover, the chance that these provisions would be accepted
in the various provinces was increased by leaving out some practical solutions that already
existed in one or a few provinces. The vagueness of these provisions could, of course, also be
directed at concealing the conflicts of interest for the benefit of the bourgeoisie.14 I only want
to emphasise here that for mere technical reasons the process of achieving uniformity on such
an over-riding scale will inevitably lead to a high degree of abstraction.
The unifying codifications thus contained a relatively large number of general
provisions. Of course, some questions had to be regulated decisively, such as the number of
witnesses necessary to make a will, or the way property should be transferred. Particularly in
the field of liability, however, one confined oneself to a remarkably small number of rather
vaguely formulated rules. Tort was taken care of in the Code civil in only five articles (13821386 Cc), whilst the Dutch BW of 1838 includes not more than 16 articles (1401-1416 BW)
on that subject.15 In the ABGB and the BGB it was treated in greater detail, using
approximately 30 articles.16 In a way this could be regarded as symbolic legislation, since
legal diversity was only symbolically resolved, at least in those fields. The abstract rules were
uniform, it is true, but the concrete interpretation of these rules was still lacking in many
cases. Many details constituting a wealth of juridical wisdom were thus sacrificed on the altar
of legal unity.17 The politicians were not bothered by this at all. They were more interested in
the sense of legal unity that resulted from a uniform codex, than in the further details of it.
Even the question whether similar cases were decided in the same way throughout the country
was of marginal importance in their eyes. They mainly used the uniform national codex to
create a sense of community among the citizens. However, the vague provisions still had to be
11
12
13
14
15
16
17
H. Kooiker, Lex scripta abrogata. De derde renaissance van het Romeinse recht: een onderzoek naar de doorwerking
van het oude recht na de invoering van civielrechtelijke codificaties in het begin van de negentiende eeuw I: uitwendige
ontwikkeling (Nijmegen 1996), 506.
K. Zweigert and H. Kötz, Introduction to comparative law (Oxford 1998), 44.
J.M. Smits, The good samaritan in European private law (Oratie Deventer 2000), 20-22, shows how such a process of
abstraction could go.
As argued by J.M. Smits, ‘De Bataafse Staatsregeling en het burgerlijk recht’ in: O. Moorman van Kappen and E.C.
Coppens (eds.), De staatsregeling voor het Bataafsche Volk van 1798 (Nijmegen 2001), 183-195, here 192-195.
The onset of a code based on general principles can already be discerned in the material of the Cras-committee, dating
from the period 1798-1804. As a consequence of the Constitution of 1798, this committee was ordered to realise the first
uniform codification for the Netherlands. Smits, ‘De Bataafse Staatsregeling’, 192-195.
Tort is taken care of in the articles 1294-1322 ABGB and the articles 823-853 BGB respectively. The new Dutch civil
code (1992), which is in fact a recodification in a country where legal unity was already existent, has no less than 35
statutory provisions (6:162-6:196 BW) at its disposal.
Smits, The good samaritan, 22-23.
interpreted. As we will see shortly, this was eventually carried out for the larger part by
judges.
The only exception to this was, once again, the ALR, since the provisions of that code
were not formulated in an abstract manner. It is true that the ALR shows a certain degree of
systematisation. A glimpse at its contents demonstrates that a well-ordered arrangement in
parts, titles and headings was used. Occasionally, one even encounters abstract definitions,
such as the definition of the contract of sale.18 However, on the whole it was notoriously
casuistic. We only have to look at the number of articles deemed necessary to regulate
problems of tort law, namely 138. Many provisions create the impression that they are
summaries of case law. A clear indication for the casuistic feature can also be found in the
severe judgements that were passed on this codification. Friedrich II, the King who had
ordered the codification, made the following remark: ‘es ist aber sehr sicke und gesetze
müssen kurtz und nicht weitläufig sein’. In 1954, the German legal historian Kunkel qualified
the ALR even as a ‘monströses, geistwidriges Unternehmen’.19
Given the fact that the ALR did not bring about legal unity, at least not formally, the
extreme casuistry is easy to understand. Some systematisation was required, as it was the idea
that lawyers could fall back on the ALR, in case a solution was lacking in provincial law. For
example, if a problem arose concerning tort, one could easily check whether part I, title 6 of
the ALR offered an answer. Therefore, the onset of an abstract code was indeed present.
However, since the purpose of the ALR was explicitly not to abolish the locally varying laws,
it also was not necessary to restrict this new codex to a relatively few abstract, coordinating
rules. On the contrary, the concept of a subsidiary code entailed that it consisted of rather
detailed solutions for specific legal problems. This was in accordance with the instructions
given by Friedrich II. It had to be a compilation of all the existing law, including the law that
was comprised in judicial decisions.20
Apparently, there are two models of codification. On the one hand, there are unifying
codifications in which a large number of abstractly phrased provisions has been used, such as
the Cc, the BW 1838 and the ABGB. On the other hand, there are non unifying codifications
that have been drawn up more casuistically, such as the ALR. It is significant that
codifications of the first model were more successful, in that they lasted longer.
4. Consequences for the process of law finding
So far, two facts have been established. Firstly, the codifications have proven to be durable by
virtue of their abstract phrasing. Secondly, these abstract terms were used for political
reasons, not with an eye to legal practice. The fact that the said codifications did not aim at
creating ‘better law’ also found expression in the exclusive force attached to them. When the
codifications were introduced, it was explicitly decreed that the existing sources of law, such
as customary law and preceding case law, were formally abrogated. This exclusivity was of
great consequence for the process of law finding.
As stated above, a large number of provisions lacked a specific content, in the
expectation that the judges would fill in these vague rules. Already, these rules did not give
the judges a lot to hold on to by mere reason of their vagueness. Their situation became even
more difficult, because they were not allowed to put in the details by using the old sources of
law they were so familiar with. Judges were ordered to decide cases solely on the ground of
the new codification.21 This rigorous choice for exclusivity can only be understood from a
political perspective. The politicians feared that the judges would return to the so much
despised legal diversity by basing their judgements on the law as they had always known it.
18
19
20
21
ALR, part 1, title 11, section 1. I used the Allgemeines Landrecht für die Preussischen Staaten von 1794 (Frankfurt am
Main/Berlijn 1970).
W. Kunkel, ‘Review of F. Wieacker, Privatrechtsgeschichte der Neuzeit’ in: Zeitschrift der Savignystiftung für
Rechtsgeschichte. Romanistische Abteilung 71 (1954), 509-539, here 534.
H. Hattenhauer, ‘Einführung in die Geschichte des Preußischen Allgemeinen Landrechts’ in: Allgemeines Landrecht für
die Preußischen Staaten von 1794 (Frankfurt am Main/Berlijn 1970), 11-39, here 19.
See the articles 11 and 12 of the Dutch ‘Wet Algemene Bepalingen’.
The establishment of a supreme court should be viewed in that light as well. From the
perspective of the legal practitioners, it would have been obvious to give the judge something
to go by. Indeed, the exclusivity has caused considerable uncertainty, particularly in the
period immediately after the codifications. Major disasters were only prevented, because
judges often disregarded the ban on resorting to other sources than the code. In practice they
often fell back, though implicitly, on the old sources of law such as the Roman law, despite
the abrogation of their formal force.22
Thus, in the first period after the codification little appeared to have changed in the
practice of continental lawyers, and in particular of judges. Formally they were strictly bound
by statutes, but in fact judges continued business as usual, which meant that they kept using
the old sources of law. What else could they have done? They could not simply set aside all
the knowledge they had acquired during their education and in the course of their many years
of practice. In the long run, the exclusive codification and the concomitant formal binding of
the judge to the new statutes did have the intended effect, though. The codifications created
the movement of ‘legalism’, which characterised the second period after the codification.
Particularly in France and Belgium this movement, also known as the ‘exegetic school’, was
influential. Bouckaert gives the following description of this movement: an author who used
the exegetic method, religiously followed the order of the provisions of the code and
painstakingly determined the intentions of the legislator; article after article was meticulously
mentioned, explained, related to other articles and (sometimes) tested against case law.23 The
method was at its peak between 1830 and 1880.24 In the Netherlands, legalism was less
influential, but there too the focus was on the code.25 The universities were of vital
importance for this development. The new generation of lawyers was educated at these
universities and there the view that the statute was the only formal source of law was adhered
to with vigour. One restricted oneself to ‘the systematic study of the statutes given by the
state’.26 The exegetic school can be considered to be exponents par excellence of the statist
doctrine of law, which is consistent with the observation that the state wanted to use the
codification to establish its monopoly on the making of law.
Around 1900, a third period dawned in which the case law that had occurred while
interpreting the codification and that had become an extensive oeuvre by then, was regarded
as an additional source of law.27 There was remarkably little resistance to this revival of the
judges on the part of the legislator. The legislator obviously could afford to loosen the reins.
He was probably confident that falling back on local law was not feasible anymore, since it
was for the larger part erased from collective memory.28 More importantly, with the exclusive
codification the state had reached the aims it was after. These days, the countries in which a
uniform codification was introduced all have legal unity and a sense of community among
their citizens. Small wonder that the grip of the legislator on the making of law is still
weakening. We are all aware of the increasing importance of vague rules in legislation, with
the effect that the duty to make law is left to judges. Nowadays, the use of vague rules is not
aimed at encompassing legal diversity conceptually, but at attaining law that is better attuned
to the needs of society. For the same reason the legislator decided not to flesh out the abstract
rules that were framed during the process of codification, for instance on tort law. Why did he
not codify the case law concerning gevaarzetting and unfair competition in 1992?
Today, some people even suggest a departure from the tradition of focussing on the
legislator and its products. Ladeur for example argues that law should be made on the basis of
a so-called ‘heterogen-kooperativen Rationalität’, which would leave more scope for
22
23
24
25
26
27
28
Kooiker, Lex scripta abrogata I, 506.
B. Bouckaert, De exegetische school. Een kritische studie van de rechtsbronnen- en interpretatieleer bij de 19de eeuwse
commentatoren van de Code civil (Antwerpen 1981), 37-39, here 38.
Bouckaert, De exegetische school, 49.
Cf the study of P.C. Kop, Legisme en privaatrechtswetenschap (Deventer 1992).
Bouckaert, De exegetische school, 416.
J.H.A. Lokin, ‘Interpretatieproblemen na de codificatie’ in: Id., Tekst en uitleg (Groningen 1994), 75-98, here 90-93.
Indeed, the judges exercised their regained freedom by drawing not from local law, nor from the international ius
commune, but from national case law. J.H.A. Lokin, ‘De nationale codificatie in haar verhouding tot het geschreven en
ongeschreven subsidiaire recht’ in: Id., Tekst en uitleg (Groningen 1994), 39-62, here 55-56.
interaction between judges on the one hand and the people in the field on the other hand.29
This is especially true for complex problems that arise as a result of technological
developments. The law should ‘systematisch auf die Erhaltung und Stimulierung der
Selbstregulierungsfähigkeit der privaten Akteure eingestellt werden’, according to Ladeur.30
In his opinion these actors should obviously have a considerable influence. Law should no
longer be deduced from statutes that are made by the central governmental institutions, but
grow freely out of society. This is not exactly a new idea. At the beginning of the nineteenth
century, yet another German, Von Savigny, had turned against the establishment of primacy
of the statutes. We have to realise that at that time the concept of making law only in the form
of statutes and only by a (democratic) central legislative institution was still new and startling
on the continent. Von Savigny was one of the first to recognize that the exclusive force was
the most significant aspect of the early nineteenth-century codifications.31 However, he did
not dismiss every possible codification, contrary to what many assume.32 He painted the
picture of a codification on the basis of matured principles, permitting the new code to
provide solutions also for unanticipated legal cases.33 However, he was convinced that the
time for such a codification was not yet ripe and I think it is questionable whether it would
ever ripen, considering his conditions. In any case, he was convinced that the principles of the
Code civil, the most sophisticated civil code of that time, were not precise enough. These
faults would inevitably result in the emergence of other sources of law next to the code, he
wrote with a remarkable insight. He even predicted that these other sources, such as case law,
would eventually take over the primacy of the statutes. As is well known, he therefore
pleaded, for a ‘Volksrecht’ that could simultaneously change with society, under the proviso
that the law had to be interpreted by legal professors, who thus would also would take care of
its further scientific development.34
For the moment, these ideas about giving up the central role of statutes should not be
taken too seriously. The legislator still uses vague provisions and thus clearly holds on to the
primacy of statutes, the reigning doctrine of sources of law since the introduction of the
codification. Even Ladeur stands by this postulate. He argues that at the end of the
heterogeneous process of law-making the legislator could take action, as has happened in the
case of the product liability.35 Apparently, our method of finding the law is still focused on
statutes, despite the changes just outlined and notwithstanding the fact that the legislator is
losing its grip on the process of law-making. This leads to a remarkable process of finding
law on the continent. The statutes are still the focal point of the legal profession, but the actual
making of law is mainly done by judges. There obviously is a division of labour between
legislator and judge. The legislator provides the appearances of continuity, whereas in fact the
judge adapts the law to the changing society. This division of labour is functioning quite well
and can be regarded as an – unintended – advantage of a codified legal system.
5. The law finding process in England
Since the introduction of the codifications around 1800, two different ways of finding the law
exist. The first way is continental and is oriented towards solving all cases by using a
statutory provision, no matter how vague this provision is. Therefore, a complete range of
methods has been developed, specifically aimed at the construction of statutes, such as the
grammatical, the historical and the teleological method. Construction makes it thus possible
29
30
31
32
33
34
35
K.-H. Ladeur, ‘Die rechtswissenschaftliche Methodendiskussion und die Bewältigung des gesellschaflichen Wandels’
in: Rabelszeitschrift 64 (2000), 60-103, here 84.
Ladeur, ‘Die rechtswissenschaftliche Methodendiskussion’, 101.
Cf the definition of ‘codification’ by F.C. von Savigny, Vom Beruf unsrer Zeit für Gesetzgebung und Rechtswissenschaft
(Heidelberg 1814), 18-19.
P. Caroni, ‘Savigny und die Kodifikation’ in: Zeitschrift der Savignystiftung für Rechtsgeschichte. Germanistische
Abteilung 86 (1969), 97-176. P. Caroni, ‘Savigny’s "Beruf" und die heutige Krise der Kodifikation’ in: Tijdschrift voor
Rechtsgeschiedenis 39 (1971), 451-477, here 471-473. Reimann, ‘The Historical School against codification’, 95.
Von Savigny, Vom Beruf, 20-22.
Von Savigny, Vom Beruf, 161-162.
Ladeur, ‘Die rechtswissenschaftliche Methodendiskussion’, 84.
that ‘the law always speaks’.36 It is striking that nowadays the continental judges enjoy
considerable freedom as a result of the abstract phrasing of many provisions. The process of
finding the law in England is completely different. England has to do without a codification,
as is well-known. It is true that the English legislator, acquired the exclusive competence to
make law by means of statutes at an early stage. However, this almost absolute competence to
legislate was not used to codify private law. Again, the explanation for this is political.37 From
the twelfth century onwards, England enjoyed the privilege of legal unity as a result of the
existence of powerful national judicial institutions. Therefore, the political necessity of a
(uniform) codification was lacking. Since legislators are rarely interested in the private law
per se, with the exception perhaps of the law of inheritance, codification did not follow.
The absence of a codification means that judicial decisions are to be found at the heart
of the process of law finding. Applying judicial decisions is extremely important in the
English method of finding the law. As distinct from the situation on the continent, where
lawyers usually confine themselves to distilling a general rule, their English counterparts look
very closely at preceding judgements. Lawyers attach great importance to the facts and will
always ask whether these facts give occasion for ‘distinguishing’. Moreover, they investigate
whether the judgement has been given per incuriam. The question whether there were
‘dissenting opinions’ will also be relevant. The English model thus lacks the division of
labour between legislator and judge that characterises the continental model. The English
judiciary has to perform both duties, taking care of continuity and of renewal. Continuity is at
the background the principle of stare decisis, in which the judge finds himself formally bound
by earlier decisions. Judges were compelled to use case law as their main anchor and in this
way restricted their own scope for developing the law. A common law judge will, in other
words, find it more difficult to depart from precedents than a continental judge.38 This of
course limits the flexibility of the law and can cause problems. Around 1500, the common law
had developed into a rigid legal system, resulting in a ever increasing gap between law and
society. This fossilisation of the common law was unacceptable, but could not easily be
resolved from within. This led to the rise of equity, in fact a parallel legal system. There are
also contemporary illustrations of the inflexibility, created by the principle of stare decisis.
Take for example the rules concerning strict liability for dangerous activities.39 In 1868, an
English judge decided in Rylands v. Fletcher that Rylands was liable for the damage caused
by a mass of water, stored in a reservoir on his property, from which it had escaped.40 In the
judgement a broad and general rule was formulated, that opened the road for the development
of general (strict) liability for dangerous behaviour.41 However, in the course of more than a
century this rule has been so specified and restricted by judges that further development of the
general rule was hardly possible. Nowadays, the rule of Rylands v. Fletcher as developed in
the successive case law is seen mainly as an aspect of nuisance, rather than as an embryonic
form of general strict liability. This became evident in 1994, in the judgement Cambridge
Water Company v. Eastern Counties Leather.42 The plaintiff, a Water Company, had suffered
damages from chemicals that had seeped through the soil below the defendant’s premises and
had reached the strata from which the plaintiff extracted water for domestic use. One of the
judges, Lord Goff, pointed at policy considerations in favour of broadening the rule. He
argued that cases of this nature should be decided on the basis of a general rule of strict
liability, in accordance with the ‘polluter pays’ principle. However, due to the intricate
structure of case law on the basis of Rylands v. Fletcher Lord Goff held the view that the
36
37
38
39
40
41
42
J.H.A. Lokin, ‘Lex semper loquitur. Over wetgeven en rechtspreken’ in: Id., Tekst en uitleg (Groningen 1994), 1-37.
Cf more extensively Van den Berg, ‘Staatsvorming zonder codificatie’, 11-13 and 19-30, and Van den Berg, ‘De rol van
rechtswetenschap en raison d’état’, 7-42.
A.P. Sereni, ‘The code and the case law’ in: B. Schwartz (ed.), The Code Napoleon and the common-law world (New
York 1956), 55-79, here 69.
I took this example from the paper ‘Strict liability and comparative law’ by E. Reid, presented on the conference ‘The
method of comparative law’ of the Hanse Law School (22-23 november 2001, University College London). Cf for a
factual description of these rules Zweigert/Kötz, Introduction, 666-671.
[1868] L.R. 3 H.L. 330. [1861-1873] All ER Rep., 1-15.
The principle is formulated as follows: ‘that the person who, for his own purposes, brings on his land and collects and
keeps there anything likely to do mischief if it escapes, must keep it in at his peril’. [1861-1873] All ER Rep., 7.
[1994] 2 AC 264. [1994] 1 All ER, 53-80.
courts should not proceed along the path of developing such a general theory of strict liability.
He concluded that it was more appropriate for such rules to be imposed by Parliament.43
The emphasis on judicial decisions does not imply that abstract values are of no
importance in England. Of course, ‘principles of law’ have always existed in England too.
They were just not given statutory force, because their significance for resolving specific
legal problems was considered small. As the famous English philosopher and lawyer Francis
Bacon wrote in the seventeenth century: ‘The rule, like the magnetic needle, points at the law,
but does not settle it’.44 Principles operate as a compass. They can help to look for a solution
in the right field and to find the right precedents, but there their usefulness ends. 45 Principles
are not law, let alone better law. From a juridical perspective it was therefore considered to be
unnecessary and nonsensical to support these principles with the authority of the state, whilst
the political necessity to do so was lacking. As a result of the principle of stare decisis a
judgement of more than a hundred years ago can be an important source of law for an English
lawyer. This is quite different on the continent, at least in the Netherlands. Compared to the
veneration payed to precedents in England, judicial decisions are more or less treated as
disposables here. Indeed, attention is mostly focused on recently decided cases.
The opponents as well as the advocates of codification mentioned in the introduction
were thus wrong. The continental codifications were not aimed at fixation of the law at all,
nor did they bring about such a fixation. Since it was very difficult to reach compromise for
all situations where rules were different, many legal problems were simply left unresolved.
Judges operating in such a legal system are formally bound by the statutes, but as these
statutes are phrased in an abstract way they enjoy a lot of freedom. At the same time, this
formal binding to the statutes brought about that judges did not consider themselves to be
strictly bound by preceding case law. As a result, law in a codified system tends to be more
flexible and thus less durable. Anyhow, it is more flexible and less durable than the noncodified English legal system.46 This is what could be called the paradox of 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. 47 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.48 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
43
44
45
46
47
48
[1994] 1 All ER, 75-76.
F. Bacon, ‘Translation of the “De Augmentis Scientiarum”’ in: F. Bacon, Works 5 (=Translations of the philosophical
works 2) (Londen 1861; J. Spedding, R.L. Ellis en D.D. Heath (eds.)), 3-119, here 106.
Vgl. E.A. Kramer, ‘Funktionen allgemeiner Rechtsgrundsätze – Versuch einer Strukturierung’ in: Im Dienste der
Gerechtigkeit. Festschrift für Bydlinsky (2002), 197-217, here 216-217.
Cf J. Esser, Vorverständnis und Methodenwahl in der Rechtsfindung (Frankfurt a.M. 1970), 188, who also points at the
freedom of a judge in a codified legal system as a result of the general provisions.
This question receives more attention of Van Gerven, ‘A common law for Europe’, 485-503. Cf also P.A.J. van den
Berg. ‘Naar een Europees privaatrecht’ in: Elsa Newsletter (oktober 1994), 22-23. The text of this paper can also be
found on www.rechten.rug.nl/arw/peter/homepage.htm.
Lando, ‘Principles of European contract law’, 264-265.
Society of Private Law:49 ‘Probably the most important function of the PECL will be that they
provide us with a common European language for discussions on contract law’.50
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.51 After all, step two of that method requires verbalisation of
the common ‘fundamental legal principles’.52 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.53 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. 54
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.55 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
49
50
51
52
53
54
55
Vereniging voor Burgerlijk Recht.
M.W. Hesselink, ‘The principles of European contract law. Some choices made by the Lando Commission’ in: M.W.
Hesselink en G.J.P. de Vries, Principles of European contract law (2001), 7-103, here 25. Lando, ‘Principles of
European contract law’, 261-273. E.H. Hondius, ‘De betekenis van de Principles of European Contract Law voor het
Nederlandse recht. Inleiding’ in: NTBR 17/9-10 (2000), 428-432. J.H. Nieuwenhuis, ‘Principles of European Contract
Law. Vooraankondiging Preadviezen voor de Vereniging voor Burgerlijk Recht’ in: NTBR 18/3 (2001), 132-134.
The Hanse Law School is a collaborative venture between the universities of Groningen, Bremen and Oldenburg which
will commence in September 2002. It will offer a programme on the basis of mainly Dutch and German law.
The HLS-method is expounded by D.H.M. Meuwissen, ‘Rechtsvergleichung in der Hanse-Region’ in: H.-D. Assmann,
G. Brüggemeier en R. Sethe (eds.), Unterschiedliche Rechtskulturen – Konvergenz des Rechtsdenkens (=Grundlagen
und Schwerpunkte des Privatrechts in europäischer Perspektive 3) (Baden-Baden 2001), 87-104. Cf also his ‘Legal
reasoning, hermeneutics and legal principles’ in: HLS Cahier 1 (2001), 3-15.
J.M. Smits, ‘Een Europees privaatrecht als gemengd rechtsstelsel of: naar een ius commune door vrij verkeer van
rechtsregels’ in: NJB 73/2 (1998), 61-66. This proposal bears resemblance to the means by which Von Savigny hoped to
bring about legal unity in Germany, as well as to the method of making law as advocated by the said Ladeur. Cf for a
fierce criticism on the ‘post-modernist “soft” discourse of current European private law’: U. Mattei, ‘Hard code now’ in:
Global Jurist Frontiers 2/1 (2002), article 1. Http://www.bepress.com/gj/frontiers/vol2/iss1/art1.
Cf Smits, ‘De Bataafse Staatsregeling’, 193.
Van Gerven proposes to charge such a European Court only with the duty of deciding prejudicial questions concerning
the interpretation of the principles of the new codification. However, he already admits himself that in actual practice
this still leaves room for legal diversity as a result of the different interpretations by the various national judges. Van
Gerven, ‘A common law for Europe’, 500-501.
the preliminary reports for the Dutch Society of Private Law speaks volumes: ‘Are the
Principles of European Contract Law better than Dutch Contract Law?’56 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.
56
M.W. Hesselink and G.J.P. de Vries, Principles of European contract law (2001), 105-186. Cf also the answer of De
Vries, ‘Are the principles’, 185-186. After having summed up some of the advantages and disadvantages of the PECL’s
vis-à-vis Dutch law he concludes: ‘These principles are in my opinion on the whole inferior to Dutch law in that they do
not make special provisions for consumers’.