First codifications of law

The contrast between the general and particular law, which was a characteristic of most part of the medieval period, stood as one of the most serious obstacles for the citizenry in their economic and legal dealings. That is why following certain political changes the process of unification of law became one of the first objectives of the modern state. This was a clearly expressed general tendency in nearly every country in modern history, especially after they had been formed into nation states. The codifications of this period were entirely different in character from the ones that appeared in ancient history and medieval period.1 Ancient history was mainly characterized by digests of law in which non-systematized legal norms were partially codified. In the medieval period there were also digests which, as a general rule, regulated a variety of legal matters in an incomplete manner, mostly the area of criminal law. One might argue that not until modern history had begun, did the codifications come into being as comprehensive, systematized digests of legal regulations which regulate one area of law in its entirety, which will be further discussed in this paper.

Code civil

The first codification of law came about in France. Namely, France had met all the conditions for forming the first civil code under the name of the Code civil. However, it did not originate merely from the spirit of the French Revolution which radically did away with all the feudal institutions of the old regime – the classes, feudal levy and corporations, prominently featuring new values such as equality of all citizens, private property, freedom of entering into contracts, family and family’s right to succession, but it also comprised all the results of a long historical development, combining traditional and new legal institutions.

By the time the code was enacted there had been two legal areas in France – in the south the written Roman law was applied (driot écrit), and in the north it was the customary law (driot coutumier). The unwritten customary rules could not have been consistently applied since it was not possible to determine precisely what their content was. Based on the royal decree a redaction of customs was done, which proved to be an important step towards the unification of law. The written redaction was followed by numerous comments of renowned lawyers who later made their contribution to the drafting of the legislative act Code civil. The legislature created during the revolutionary period formulated in the Declaration of the Rights of Man and the Citizen in 1789,2 also represents the principles which the Code was based on. It is worth noting that the Declaration was based on the ideas of the natural law school of thought, and it proclaimed the equality of people, or the idea that people were born free and remained equal in their rights, as well as the idea that one’s natural rights were their freedom and property. While drafting the legislative act Code civil, along with the mentioned legal sources the redactors also relied on canon law, case-law of higher courts, legislature created in the revolutionary period and the theoretical principles in the works of Pottier.3

The drafting of the Code civil project started with the establishing of Napoleon as First Consul in 1799. He nominated a four-member committee, comprised of lawyers, who were representatives of the south of France customary law: Tronchet, Portalis, Maleville, Bigot de Préameneu. This Code was drafted in an incredibly short period of time and adopted on March 31st,1804, under the name Code civil Francais , and then in 1807, it was republished as Code Napoléon . Napoleon figured prominently in the drafting of the Code. Thus, for instance, out of 132 sessions of the Council of State in which the drafting of the code was discussed, Napoleon personally presided over 55. Seeing as he was not a lawyer himself, in these sessions he paid great attention to the matters concerning life. He understood the importance of legal rules and he always insisted on the language of law being average and easily understandable to the layperson.⁴ For that reason Code civil contains simple and elegantly formulated norms. In their formulations there are no superfluous words or awkward linguistic structures. Hence the text of the Code is not understandable merely to the educated lawyers but to the laypersons likewise. A considerable merit of the redactor of the Code was that by using these formulations the norms were given elasticity, which in turn brought longevity to the Code as well as the possibility to adjust to social development. The material of the Code is distributed into three books, with over 2, 200 articles. The first deals with status law and family law, the second with property law (but not entirely), while the third, alongside the law of obligations, deals with law of succession, property law in part, mortgage law, marriage law and real right. In case of the right to compensation for damages, the provision from article 1,382 is particularly significant in that it legitimizes the general principle that anyone who through their own fault harms another person is obliged to compensate for the harm done. According to this Law, for the liability for damage to exist, all it takes is the negligence of the wrongdoer. Moreover, the Law also prescribes liability for other persons, objects and animals, as well as the liability of the manufacturer for the damage caused by their product.

Napoleon’s Code civil was only one of the many codes at the beginning of the XIX century which served to codify the French law. In 1806, the Civil Procedure Code was enacted ( Code de procedure civile ), and in 1807, the Commercial Code ( Code de commerce ). Criminal law was codified in 1791, with a law that did not last very long, only for the new Penal Code ( Code penal ) to be adopted in 1810, which prevailed in usage much longer. Meanwhile, in 1808, there was the codification of the criminal proceedings.⁵

With regard to style, the Penal Code of 1810, was observed to be very strict. Two main ideas laid the foundations of this act of legislature – that justice must be served, and that punishment is justified by one’s own necessity and usefulness. This Code contains around 500 articles, and the material is divided into four books. The first book is titled “ Of Penalties in Criminal and Correctional Matters, and of their Effects”, and the second “”Of the persons punishable, excusable, or responsible for Crimes or for Delicts”. In the third book titled “Of Crimes and Delicts, and of their Punishment” different criminal acts are set forth classified under various titles. The first of them sets the norm for the criminal acts against the public goods and services, and the other sets the norm for the criminal acts against individuals within which a division was made into criminal acts against the person and criminal acts against property. The fourth book titled “ Offences of Police and Penalties” regulates the area nowadays known as offences.

One of the greatest contributions of this Code to the development of international law is the three-way classification of criminal acts, i.e. their division into crimes, delicts and offences. The German law took on this division from the French Penal Code. It is of an extreme importance that this division was adopted by the Prussian Penal Code of 1851, which combined with the French Penal Code of 1810, exerted the strongest influence on the Comparative law. Through Prussian law this division reached Serbian law as well, which used the Prussian Code as a role model during the process of criminal law codification.

The penalties prescribed by this Code in every criminal act ranged from a minimum to a maximum. With the boundaries set in this manner, the judge was able to adjust the sentence to a concrete wrongdoer and the circumstances of the committed act. Later on all criminal codes would come to adopt this system.6

This Law abolished corporal punishment, and introduced punishments like confiscation of property and life sentence. Still, regardless of the fame of the French penal legislature, Anselm von Feuerbach is considered to be the father of the modern criminal law science. He researched into what the effect of the punishment on the offender should be, setting forth the theory of psychological constraint. According to this theory the purpose of punishment is not only deterring the offender from committing a crime, but also acting preventatively on other members of society so as not to commit a crime. When the citizens know what to expect for unlawful behavior beforehand they will refrain from committing any such unlawful acts out of fear. In order to be able to behave in this manner it is necessary that they be well informed of what kind of behavior they can be punished for and what the punishment is. Therefore Feuerbach set the principle of legality expressed in the famous maxim “there is no crime, there shall be no punishment if they are not prescribed by the law”. Since Feuerbach was the redactor of the Bavarian Penal Code of 1813, he was able to “infuse” his ideas into the Code. However, the Code was highly repressive in that it prescribed capital punishment for numerous criminal acts, as well as corporal punishment. This Code influenced the subsequently enacted Prussian and Austrian criminal code, hence the Serbian code as well.7

Code civil also wielded a powerful influence on the development of civil law in other countries, and served as a model for the drafting of many civil codes such as the Dutch, Belgian, Italian, Spanish etc. Moreover, it had been in force in some parts of Germany until the German Civil Code came into force in 1900. The original project for the Principality of Serbia was a failed translation of the legislative act Code Civil , which due to its many shortcomings never got to become the draft of the code.

The Civil Code of Austria

In Austria, at the time of enactment of the Civil Code, the situation was different than in France. In the Austrian Empire, after the failure of revolutionary endeavors, a compromise of the bourgeoisie, the feudal lords, and absolutism ensued. For the purpose of creating a centralist absolute monarchy, the Habsburg emperors realized the significance of an unified codification of civil law for a multinational country like Austria.

The work on the codification of the civil law in Austria began in 1753, during the rule of Maria Theresa. The commission made a Draft in three books, which resembled a textbook more than a legal text, and it contained 7,377 articles. The new commission presided over by Martini was formed in 1790. However, the Draft of the General Civil Code completed by Martini in 1796, completely deviated from the Codex Theresianus, so the text was entrusted to a new commission for the final drafting. The head of the commission was Franz von Zeiller who finalized the work on the codification. The Code was finally adopted in 1811, under the name of the General Civil Code. It contains 1,502 paragraphs and it is divided into the introduction and three parts: personal law and family law, property law with succession law and one part of the law on obligations, joint provisions of personal and property law. The stated division points to the substantive character of the Code, which is to protect the persons who possess property.8 This Code has broader formulations and general provisions, thus it provided a suitable basis for the development of case law. Regarding the standardizing of liability for damage, the Austrian Civil Code favors a certain specification of terms. For that reason there are many more provisions in this Code that deal with civil liability then there are for example in the French code. Compared to four legislative acts contained in the French code, the Austrian code has as many as 49 paragraphs. Therefore, the Austrian law on damage compensation is regulated with a greater precision.

Nevertheless, in comparison with the French code for instance, the Austrian civil code is considered short, and evidently has many gaps, so to that end upon the proposal of Joseph Unger in 1904, a commission was formed to revise it. Supplements and amendments to the Code were modeled after the German Civil Code, and during 1914, 1915, and 1916, three novelties were introduced out of which the last one changed the text of the Code for the most part.

The Civil Code of Austria exercised influence outside the countries in which it was first proclaimed. This influence was felt mostly in Central Europe, especially in those countries which formed part of the Habsburg Monarchy. In Slovenia and Dalmatia the text featuring novelties was in force, while in Croatia, Slavonia and Banat the text without novelties was in force. In Bosnia and Herzegovina it was applied to the property law and law of obligations, and the Civil Code of the Principality of Serbia of 1844, represented a shortened version of the Civil Code of Austria.9

The German Civil Code

In Germany the creation of a unified civil code was an imperative for a long time. Namely, it had almost been impossible to enact an unified civil code for the whole Germany since it was fragmented into small principalities and kingdoms which had codifications of their own and which breathed the spirit of feudal law. The situation in Germany was also specific due to the bourgeoisie neither winning in the revolution of 1848 nor becoming the ruling class. It compromised with the feudal forces and succeeded in standing up for the enactment of a law which would suit the growing capitalist relations.

The work on the codification of the German Civil Code started in 1874, when a committee of 11 members was formed presided over by a renowned professor of pandect law Windscheid. After 13 years the committee drafted the first project of the civil code, and it met with sharp criticism due to the doctrinal outward form of the Code, filled with conceptual abstractions of the pandects theory and the legal terms which the people were unfamiliar with. Due to the insistence on the legally precise and accurate form of expression, the sense and clarity were lost. There were objections raised to the exaggerated technique of referral of the Code. Consequently, the work on the civil code was continued by another committee, formed in 1890, which made the necessary linguistic corrections and lessened its overwhelming individualism. The work on the Code was completed in 1895, thus the Code was adopted with subtle amendments in 1896, and came into force on January 1, 1900.

An important novelty introduced in this Code is that for the first time the institutional threefold systematic was abandoned in order to introduce the systematic of the pandect law. It is comprised of 2,385 paragraphs, and divided into five parts (books): the general part, the law of obligations, property law, family law and law of succession. The sixth book of this Code refers to the application of foreign laws, contains 30 paragraphs and was entered into the Code by the Introductory Law of the Civil Code ( the so-called international private law). The pandect classification of the civil law clearly outlines the central institutions of the civil law – the owner, private property and protection of the property. Under the influence of pandect law the German Civil Code contains the general part at the beginning, which represents a considerable novelty in comparison with the codes of civil law of the XIX century, inspired by the Gaius’s division of institutions.10 This novelty contains in the general part norms that apply to the other parts of the Code thus avoiding the unnecessary repetition of these provisions in separate sections of the Code. Compared to the Codes enacted before the German Civil Code, apart from the original systematic there are other novelties too, such as for instance the provisions on legal persons and types of legal persons, objective liability for dangerous objects etc. The tendency of the German legislator was to foresee in great detail as many legal situations as possible, which consequently resulted in an exaggerated casuistry approach and the wordiness of the Code. This method also has its shortcomings seeing as every casuistry as a rule is incomplete, which makes it difficult to fill in the legal gaps. Despite that, this shortcoming was mitigated by the introduction of new principles to the Code, such as conscientiousness, integrity, good customs, prohibition of abuse of law etc., which the judge invokes in case of lack of a concrete legal rule. These general clauses enabled flexibility in the application of the Code to the present day.11

The influence extended by the German Code in other countries is considerably smaller than the influence of the French Civil Code. This can be attributed to the diverse occurrences in the XX century, as well as to the features of the German Civil Code pertaining to the nature of its content and form. Under its influence to a greater or lesser degree novelties are introduced to the Civil Code of Austria, Swiss Civil Code in 1907, Polish Code of Obligations of 1933, Greek Civil Code etc.12

General Property Code for the Principality of Montenegro

The work on the codification of civil law in Montenegro was entrusted to Valtazar Bogišić, one of the most knowledgeable lawyers in the Slavic South. He worked on this code discontinuously for sixteen years, out of which effectively for twelve, thus it was passed in 1888, as the General Property Code for the Principality of Montenegro.13 It was not modeled after a specific foreign source but after the real needs, occurrences and conditions in Montenegro where at the time subsistence economy prevailed, while commerce, trade and credit relations were still in the initial phase of growth. After being isolated for centuries Montenegro started opening to the world, hence there were still no educated lawyers or written law. Life was lived and sentences were passed according to customary law created on their own soil, out of the reach of foreign influences and Roman Law. This Code represents the codification of the existing customary law and the legacy of contemporary science of that time, achieving thereby a twofold objective: creating a Code suited to the occurrences in Montenegro, and opening to Europe.

The systematic of the General Property Code for the Principality of Montenegro has completely been original since it encompassed solid ius in re , which, according to Bogišić, is only the property law and real right. Law of succession and family law remained outside this Code which states a highly original attitude at the time.

Bogišić adopted the practice of the English legislature that all expressions which can be encountered in law but not in everyday language need to be explained in that same law14 so as to make it more understandable and easier for the laypersons. Although the General Property Code was written in a language which in the redactor’s own words is “ simple and folk” the usage of technical terms was still inevitable to a certain degree.15

In the systematization of material for the Code Bogišić adhered to the rule “from the more concrete to the abstract, from the more familiar to people to the less familiar”. In consistency with the stated principle the Code firstly regulates property, and then other real rights, purchase agreements, as the basic agreement of the law of obligations, followed by other agreements etc. The Code contains introductory general orders, regulations on laws and regulations on the international private law, regulations on the subjects of law, real rights including regulations on mortgage, obligations, general part of contract law and regulations on certain contracts. The end of the Code features explanations, references and supplements to the entire law. With regard to the quality in general – of content, language and style – the General Property Code is the finest legislative creation of that time and one of the most interesting and finest creations of the kind in the European legal civilistics of the XIX century. 16

Throughout XIX century criminal law in Montenegro rested partly on customs, and partly on laws. The laws which contained the norms of criminal legislation were the Code of Petar I and the Code enacted during the reign of Danilo Prince of Montenegro in 1855, under the title General Law of the Land. Even though these laws dealt with criminal legislation, it cannot be said that criminal law was regulated in a systematic manner. An important turn in Montenegro was marked by the reign of Prince Nikola. Thus, apart from the most important work of codification of 1888, (General Property Code), Criminal Code was enacted in 1906. This Code represents a full acceptance of the Serbian Code of 1860.17

Serbian Civil Code

The renewed Serbia during the first reign of Prince Miloš had no written laws or educated lawyers. They lived according to customary law and under Miloš’s rule. At first the Serbian Prince did not want his rule to be restricted by written law, but in time he became increasigly aware of the need for such laws to be passed in the country. The work on the codification of civil law in Serbia began during Prince Miloš’s rule, who entrusted the work on the drafting of the Code to Georgije Zaharijades in 1829. More precisely, he instructed him to translate some of the old civil codes. Based on the codification Zaharijades took the French Civil Code, only not the text of the French original, but the German translation of it. The translation was not a success, hence due to many of its shortcomings it never even got to be a draft.18 Further work on the code was continued in 1836, when Miloš turned to the Austrian government for permission for Vasilije Lazarević and Jovan Hadžić to come to Serbia, in order to review the existing legal drafts and to finalize the form of the first written laws in Serbia. The Austrian government responded favorably to this request, and Lazarević and Hadžić arrived in Belgrade in 1837. Revising the legal drafts they came to the conclusion that the existing drafts are not good since they assume the existence of educated officials the likes of whom cannot be found in Serbia. They also considered that courts should be regulated in the simplest possible manner, and that in Serbia laws need to be created which will derive from the qualities of the people. Therefore they rejected the existing legislative work, and suggested to Prince Miloš that new law be passed which would suit the occurrences in the country, needs of the people, customs and practices. Prince Miloš approved of their intentions and they assigned duties in such a manner that Hadžić took over the work on the civil code, and Lazarević took on the criminal code and civil procedure, except that his work was never legalized, while Hadžić’s was.19

The work on the drafting of the code lasted discontinuously until 1842. It was drafted in accordance with the Civil Code of Austria and it represents its shortened translation into Serbian and its paraphrase.20 It was reviewed by a commission which approved it, and it was adopted as the Civil Code of Law of Principality of Serbia by the Council on Annunciation on March 25, 1844. Stojanović21 states that this Code, as a legislative body, by its qualities falls far under the level of its source – the Civil Code of Austria. Out of 1,500 paragraphs contained in the Austrian Civil Code, Hadžić reduced the number to 950 contained in the Civil Code of Serbia, thus turning the clear definitions of the source material into short version definitions which were difficult to understand, unclear, and utterly useless, for that matter. Since Hadžić was a literary man and a great opponent of Vuk Karadžić, the language in which the Code was written was difficult, artificial and outdated, which contributed to the incomprehensibility of the text.

In certain places Hadžić made some adjustments to the norm. Fundamentally, the style of standardization equals that of the Austrian, except that his handling of the source material stirred some legal debate when the Code was first published. In some places he joined paragraphs of the Austrian Code into one, and in other places he would separate certain paragraphs. The arrangement of the material is identical in both works of legislature, which means that the Serbian Civil Code contains an introduction and three parts. It is worth noting that the introduction in the Serbian Code is longer and comprises 35 paragraphs compared to the 14 paragraphs of the Austrian Code. The first part deals with personal law, and the second with the law of succession and property law, and the third with general dispositions, i.e. joint provisions of personal and property law.

Although he relied on the Civil Code of Austria, Hadžić deviated from the source in certain places. This statement is supported by the comparison of norms of the two Codes, thus it remains unclear where Hadžić found the inspiration for these deviations. There are various instances of deviations from the source, however two institutions draw most attention: a type of family community called zadruga and the legal order of succession.²²

Enactment of the civil code had a remarkable significance for Serbia since it enabled laying the foundations of the state on legal grounds. Through the Civil Code of Austria the idea of the natural law school and the influence of the Roman law made it possible for Serbia to move towards the growth of a capitalist civil society. It is worth pointing out that the Code was far ahead of its time because at the time of its enactment Serbia was a traditional society with a very patriarchal family, while the Code was a codex of the civil society.23

Conclusion

Codification is a technique of creating great laws which, in a highly methodical way, regulate the social relations of an entire area of life. They marked the early capitalism and responded to the needs of the bourgeoisie for the creation of a nation state, with a unique market and public policy. The codification of the civil and criminal law in the European countries was preceded by major socioeconomic changes. The first complete codification of law was created in France, after the revolution, at the beginning of XIX century. The codifications were realized in almost all branches of law and in a short time period during the rule of Napoleon and they revolutionized modern law. After France, the tendencies to enact a code which unifies the legal system spread all around Europe, even the world. It is fair to say that the impact exerted by the French codifications, and especially Code Civil , on the further development of law in the world is immeasurable. To a greater or to a lesser degree it was accepted or at least looked up to by not only the European legislators but also by numerous other legal systems. In that period the Serbian Civil Code of 1844, also came into existence, which although heavily reliant on the Austrian model, the Civil Code of Austria of 1811, falls into the few of the first codifications in Europe.

Krstinić Dalibor

Doc. dr, Pravni fakultet u Novom Sadu, Univerzitet Privredna akademija u Novom Sadu

Vasiljković Jovana

Doktorand, Pravni fakultet u Novom Sadu, Univerzitet Privredna akademija u Novom Sadu, sekretar Farmaceutskog fakulteta, Novi Sad

PRVE GRAĐANSKE I KRIVIČNE KODIFIKACIJE

REZIME : Kodifikacija, uopšteno govoreći, predstavlja svako potpuno zakonsko regulisanje jedne pravne oblasti, bez obzira na to da li je to ostvareno putem jednog ili putem više zakonskih akata. Kodifikacija je bilo i u starom veku (Hamurabijev zakonik, Justinijanova kodifikacija), a bilo ih je u srednjem veku, iako je feudalizam bila epoha nekodifikovanog i partikularnog prava. Ipak, kodifikacije su postale brojne na prelazu iz feudalizma u kapitalizam, stvaranjem nacionalnih tržišta i centralizovanih nacionalnih država. Tako je epoha buržoaskih kodifikacija počela 1804. godine Francuskim građanskim zakonikom. Posle francuskog donet je Austrijski građanski zakonik 1811. godine, Opšti imovinski zakonik za Crnu Goru 1888, Nemački građanski zakonik 1896. godine i 1844. Građanski zakonik za Knjaževstvo Srbije, koje i predstavljaju predmet ovog rada.

Ključne reči : kodifikacije, Code Civil, Austrijski građanski zakonik, Opšti imovinski zakonik za Crnu Goru, Nemački građanski zakonik, Građanski zakonik Srbije.