Legal History from a European Perspective episodes:

• January 17, 2021LH0920: Towards a German Code

  1871: the Second Reich.

  1874-1887: the first draft.

  1887-1890: Discussion on the Entwurf (provisional version of the code).

  The Germanists suggest the introduction of some (allegedly) customary institution.

  An Example: protection of the rent of houses. The return of the Gewere.

  Other example: foundations and communities.

  1896-1900 Bürgerlich Gezetzbuch (BGB).

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• January 17, 2021LH0910: German Model: the Primacy of Jurisprudence

  1814: Savigny against Codification.

  Volksgeist and the customary origin of every form of law.

  Aporia: how could Roman Law be customary?.

  Against Roman Law: the Germanists refuse the « law of Professors ».

  The real meaning of the contrast: liberal individualism vs. social corporatism.

  An example: Possession (Herzog 213):

  - Good faith, titulus, res habilis;

  - Exclusion of possession of rights.

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• January 17, 2021LH0860: France as a Flag Bearer

  1830 and 1848: Paris does not forget the Revolution

  The Belle Époque: progress, science, arts, and the law

  Codifications in Europe

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• January 17, 2021LH0850: Also the jurist must be the mouth of the law?

  Napoléon’s reform of legal studies.

  Studying law means to understand the Civil Code.

  École de l’exégèse: what is exegesis?

  Triumph and defeat of the codification: the whole law is reduced to the code, but the code still needs a doctrinal interpretation.

  More codifications:

  - 1810: Criminal Code;

  - 1806: Procedure;

  - 1807: Commercial Code;

  - 1808: Criminal Instruction Code;

  New branches of legal science.

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• January 17, 2021LH0840: Mouth of the Law (bouche de la loi)

  Articles 4 and 5: no judge can refuse a judgement.

  Interpretation: the declaration of rights and the constitution help the judges in applying the Code.

  The judge cannot « bend » the law: he can just apply it.

  The judge must not extend the meaning of the law by analogy: if a case is not clearly foreseen in the Code he must ask directly to the legislator (the National Assembly).

  A judge is like a robot: just the mouth of the law.

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• January 17, 2021LH0830: Code Napoléon, 1804

  The Revolution did not issue a Civil Code: all projects raised criticisms.

  Portalis drafts the Code. He was a jurist formed in the French tradition.

  Herzog 209: the Code « was not all what it was supposed to be ». Is that right?

  Structure of private law: the two « major innovations » (Herzog 189-192) are there.

  Absolute property, freedom of contract, unification of subject.

  Abrogation of all existing laws.

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• January 17, 2021LH0820: Absolutism and Codification

  Codifying without a Revolution: Tuscany 1786 and Prussia 1794.

  Innovation and conservatism: the code is often contradictory.

  Also the projects set by revolutionary governments in France realise an absolutist project.

  Assemblée Nationale is not absolutist enough.

  1804: a French Empire under Napoléon.

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• January 17, 2021LH0810: 1792-1815: France at War

  The military side of the Revolution.

  1792: The French Revolution against the coalition of conservative States.

  International attitude of entlightened theories.

  Internal and external enemies justify the terror and forms of dictatorship.

  Italy: 1796-97: Cisalpine Republic.

  1804: French Empire.

  1805-1815: More wars from Portugal to Russia. Final defeat at Waterloo and restauration.

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• January 17, 2021LH0740: Using European Legal Culture for Founding the US

  During the 18th Century European jurists developed the theories of natural laws.

  They established the natural right of every nation to rule itself.

  Emer de Vattel’s Law of Nations (1758).

  American Revolution introduced also a major example of the claim of the colonies for independency.

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• January 17, 2021LH0730: 1787-1798: the Constitution and the Bill of Rights

  1787: the government of the Union: separation of powers.

  Executive: the President.

  Legislative: the Congress.

  Judiciary; judges and the Supreme Court.

  The American Constitution is a new pact - not the acknowledgement of existing ancient popular customs.

  Four innovations: 1) Expression of general priciples; 2) Nature and reason as grounds; 3) Written form; 4) Definition of natural rights.

  The Constitution above and beyond ordinary laws.

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