Учебный год 22-23 / An Historical Introduction to Private Law
.pdf
AN HISTORICAL INTRODUCTION
TO PRIVATE LAW
In this book one of the world's foremost legal historians attempts to explain what produced the private law of the western world as we know it today. Professor van Caenegem pays particular attention to the origin of the Common Lawcivil law dichotomy, and how it arose that England and the continent of Europe, although sharing the same civilization and values, live under two different legal systems. The chronological coverage extends from the Germanic invasion in the early Middle Ages to the present day, incorporating analysis of the medieval Roman and canon law, both products of the law schools, and that of the School of Natural Law which inspired the great national codifications of the modern age.
Professor van Caenegem evaluates the role of the lawgivers - emperors, kings and parliaments - and that of the judges, particularly, of course, in the lands of the English Common Law. He deals with the great phases of legal development and the main bodies of doctrine and legislation, rather than offer an analysis of the legal norms themselves; substantive private law — family and status, property, contract, inheritance, trade - and with the organization of the courts and the forms of process.
An Historical Introduction to Private Law is based on both an extensive secondary literature in several languages, and on evidence accumulated by Professor van Caenegem over the past forty years.
AN HISTORICAL INTRODUCTION TO PRIVATE LAW
R. C. van CAENEGEM
Professor of Medieval History in the Faculty of Letters and of Legal History in the Faculty of Law, University of Ghent
TRANSLATED BY D. E. L. JOHNSTON
(CAMBRIDGE
UNIVERSITY PRESS
Published by the Press Syndicate of the University of Cambridge The Pitt Building, Trumpington Street, Cambridge, CB2 1RP 40 West 20th Street, New York, NY 10011-4211 USA
10 Stamford Road, Oakleigh, Melbourne 3166, Australia
Originally published in French as Introduction historique au droit prive by Editions Story-Scientia 1988
and © R C. van CAENEGEM
First published in English by Cambridge University Press 1992 as
An Historical Introduction to Private Law
English translation © Cambridge University Press 1992 Reprinted 1994, 1996
A catalogue recordfor this book is available from the British Library
Library of Congress cataloguing in publication data
Caenegem. R. C. van. [Introduction historique au droit prive. English]
An historical introduction to private law / R. C. van Caenegem: translated by D. E. L. Johnston.
p.cm.
Translation of: Introduction historique au droit prive. Includes bibliographical references (p. ).
ISBN o 521 40514 9
1. Civil law - Europe - History. 1. Title. KJC956.C34 1992
346.4 -dc2O 9I-2284I GIP [344]
ISBN o 521 405149 hardback
ISBN o 521 427452 paperback
Transferred to digital printing 2003
Contents
Preface to the English-language edition |
page ix |
|
1 |
The origins of contemporary private law, 1789-1807 |
1 |
|
The Code civil of 1804: an end and a new beginning |
1 |
|
The Code civil in Europe |
2 |
|
Common law and reception |
2 |
|
The compilation and promulgation of the Code civil of 1804 |
4 |
|
The Code civil: ancient and modern |
6 |
|
The spirit of the Code civil |
7 |
|
Courts and procedure |
10 |
|
The merits of codification |
11 |
|
Opposition to codification |
13 |
|
Bibliography |
15 |
2 |
Antecedents: the early Middle Ages, c. 500-c. 1100 |
16 |
|
The character of the period |
16 |
|
Roman law |
17 |
|
The Germanic national laws |
18 |
|
Feudal law |
20 |
|
Legislation: general points |
20 |
|
Legislation: the capitularies |
21 |
|
Jurisprudence |
24 |
|
The courts and procedure |
25 |
|
Evaluation |
26 |
|
Bibliography |
28 |
3 |
Europe and Roman-Germanic law, c. 1100-c. 1750 |
30 |
|
Character of the period |
30 |
|
Before and after 1500: continuity |
31 |
|
The development of the law: outline |
33 |
|
Customary law |
35 |
|
The European ius commune |
45 |
|
Legislation |
85 |
|
Case law |
95 |
vi |
Contents |
The courts and procedure |
99 |
Factors |
107 |
Evaluation |
108 |
Bibliography |
109 |
4Enlightenment, natural law and the modern codes: from the mid-eighteenth to the early nineteenth
centuries |
115 |
Characteristics |
115 |
The Enlightenment |
115 |
Natural law |
117 |
The codes of the Enlightenment |
122 |
Factors |
125 |
The courts and procedure |
128 |
English law in the Enlightenment |
134 |
Evaluation of the law of reason |
139 |
The law of reason and the Historical School |
142 |
Bibliography |
144 |
5 The nineteenth century: the interpretation of the Code |
|
civil and the struggle for the law |
147 |
France |
147 |
Belgium and the Netherlands |
151 |
Germany |
155 |
Conservative England |
159 |
Innovation in England |
162 |
Bibliography |
165 |
6 Statute, case law and scholarship |
170 |
The question |
170 |
Advantages and disadvantages |
170 |
Legislators, judges and professors: competition |
173 |
Law and the Volksgeist |
177 |
7 Factors |
180 |
Introduction |
180 |
Change in law |
181 |
Ideas and political power |
183 |
Social groups and private law |
184 |
The intellectual and moral climate |
187 |
Final considerations |
196 |
General bibliography |
198 |
Index |
206 |
Preface to the English-language edition
Private law is concerned with individual men and women whose relations, one hopes, will be harmonious; otherwise the courts intervene and settle their disputes peacefully and authoritatively. Since this extensive and pervading body of law regulates our daily lives, we may well pose the question as to how and when it was created. If we all happened to live under one and the same civil code, conceived and rapidly penned by Napoleon, the answer would be wonderfully simple. Legal history unfortunately is not that straightforward: one complication is that the law of our present-day western world consists of two quite different systems, English Common Law and continental civil law, also called the law of the RomanGermanic family. How these legal systems, both of European origin, came into being, went through various stages of development and always remained alien to each other is one of the themes of the present Introduction, where the continental lawyer may learn something about his own heritage but also about events across the Channel, and vice versa. At a time when British judges sit with their continental brethren in European courts of law, this may be especially welcome. National legal histories are readily available, and so are works on Roman and canon law — my Introduction is, of course, largely based on them — but studies that transcend national frontiers and attempt to weave the historic threads of common and civil law into one fabric are still rare. This may go some way towards justifying the present survey, which is the fruit of my teaching in the Law Faculties of the Universities of Ghent and - during the academic year 1984-85-of Cambridge.
This short book, which covers the period between the sixth and the twentieth centuries, does not attempt to present an analysis of the substance of private law, but merely an external history, explaining who were the great lawgivers, jurists and judges who
V ll
viii Preface to the English-language edition
shaped it, and what texts their endeavours produced. The legal norms themselves are only occasionally discussed, in order to illustrate factors which influenced the course of events.
I hope that the English-reading world will welcome this attempt, and judge that the trees felled to produce the paper on which to print it have not fallen in vain.
It is my pleasant duty to thank the translator, Dr D. E. L. Johnston, who has devoted much of his precious time to this ungrateful task. I would also like to thank the Syndics of the Cambridge University Press who, having welcomed several of my earlier manuscripts, have once again decided to publish my work under their illustrious imprint.
Ghent R. C. VAN GAENEGEM
CHAPTER I
The origins of contemporary private law, ij8g-i8oy
THE CODE CIVIL OF 1804: AN END AND A NEW BEGINNING
1 This book does not aim to sketch out a 'universal' history oflaw1 but to give a historical introduction to the development of the private law currently in force in Belgium and the Netherlands. That law is made up of very old as well as very modern elements, and during its development it went through periods of stagnation and periods of rapid change. The most important of these periods was that of the great Napoleonic codifications, in particular the Code civil des Frangais promulgated in 1804. The Code civil is the culmination of several centuries of French legal evolution: much of it is old law, some of which goes back directly or even literally to the customary and Roman law of the Middle Ages and early modern times. None the less the Code civil of 1804 marked a decisive break in the gradual evolution of the law. It replaced the variety of the old law with a single and uniform code for the whole of France; it abolished the law which had previously been in force, in particular custom and Roman law (art. 7 of the law of 31 March 1804); it incorporated several ideological measures inspired by the Revolution of 1789; and it attempted to make the traditional role of legal scholarship superfluous, by forbidding doctrinal commentary on the codes, in the belief that the new legislation was clear and selfsufficient.
The French Code civil immediately came into force in Belgium, whose territory had been annexed to France and divided into departements. As in France, so in Belgium: the Code has never yet been replaced, although numerous measures have been amended, omitted
1See the encyclopaedic work of J. Gilissen, Introduction historique au droit. Esquisse d'une histoire universelle du droit. Les sources du droit depuis le XIII' siecle. Elements d'une histoire du droit prive
(Brussels, 1979).