Codification in the Romano-Germanic Tradition in the 19th – 20th Centuries: From Mythologization to Rational Critique. Part 1

Introduction: in comparative law, codification of law is conventionally regarded as a unique and arduous achievement of modern Western European legal culture, which in the 19th century defined, and to a significant extent continues to define, the character of the Romano-Germanic legal tradition. Codes are generally recognized as a triumph of a rational perspective on law, underpinning its rational-legal legitimacy. However, is this truly the case? Are there not transcendent elements within codification? The methodology of this article entails seeking an answer to this question through functional analysis, that is, by identifying assertions about codified law that do not correspond to reality and lack tangible consequences for the legal system. The aim of this article is to identify the legal myths that accompanied the drafting, enactment, interpretation, and application of leading European civil codes (the French Civil Code of 1804 and the German Civil Code of 1896). The author asserts and substantiates that behind the rational facade of codification lie the myths of the “sacral” authority of the code, its completeness and internal consistency, and the superiority of its abstract norms over the casuistry of judge-made law. The conclusion of the article is the thesis that these myths served as the ideological source of the statute-centric, holistic legal system of nation-states in Europe from the 19th century onwards and also conditioned the widespread reception of codes in diverse non-Western jurisdictions (excluding common law and customary law countries).