Codification in the Western Middle Ages

Chapter 5 Codification in the Western Middle Ages Emanuele Conte and Magnus Ryan Modern legal history was born in Germany, at the beginning of the nineteenth century, with the particular purpose of providing an alternative to a legal system based on rational codification. As a recent addition to Napoleon’s Empire, large areas of Germany experienced the new Code Civil, the very model of every modern codification in Europe. The French Code was not only the expression of Napoleon’s imperial power, but was also a powerful stimulus for the develop- ment of a modern capitalist economy based on the principles of private prop- erty and freedom of contract. In addition, the rational system of rules it propounded was uniformly valid throughout those areas subject to French con- trol, a fact cited by Anton Friedrich Justus Thibaut in 1814 and by many like- minded lawyers as a compelling reason for the introduction of a similar general codification in Germany.1 Against this idea, Friedrich Carl von Savigny famously insisted on the supremacy of legal science over the power of the Herrscherstaat, affirming as he did so what he saw as the deeply rooted national character of the law. Legislation could at most reflect such a profound, national, legal spirit, while the best interpreters of legislation were trained lawyers to whom the noble task fell – thanks to their knowledge of the history of national law – of conferring a real unity on the private law of their country.2 The wave of codification which swept through Europe (Prussia in 1794; the two empires of Napoleon and Habsburg Austria in 1804 and 1811 respectively) could not, in Savigny’s judgement, deliver the Enlightenment utopia of a rational, simplified and trans- parent legal system, in which all law would be concentrated in legislation, and the function of the judge reduced to that of robotic application of sovereign rules, with doctrinal interpretation eliminated entirely. Although very influen- tial well beyond the borders of Germany, Savigny’s plea for the supremacy of legal science or Rechtswissenschaft over legislation possessed intellectual and 1 A short survey of the historiography on codification in Germany by B. Dölemeyer, in Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte, 3.2, Deutschland, ed. H. Coing (Munich: Beck, 1982), 1425–1439, with extensive bibliography up to 1980. Still very important and clear: F. Wieacker, Privatrechtsgeschichte der Neuzeit, 2nd ed. (Göttingen: Vandenhoeck & Ruprecht, 1967 with many reprints), 348–377. 2 On the role played by law professors in shaping the national private law, see now F.L. Schäfer, Juristische Germanistik. Eine Geschichte der Wissenschaft vom einheimischen Privatrecht; Juristische Abhandlungen 51 (Frankfurt-am-Main: Klostermann, 2008), 348–349. © koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004277878_007 <UN> 76 Conte and Ryan abstract appeal rather than any practical influence. Even as his ideas were gain- ing converts throughout the continent of Europe, the French model of legislation was being embraced and imitated by nation states, as they promulgated numerous civil codes to regulate their new industrial economies.3 These competing evaluations of the relationship between legislation and codification in European legal systems in the very age in which modern legal history as a discipline was being born still colour our understanding of the history of codification in late antiquity and the Middle Ages. On the one hand, each collection of legislative texts tends to be seen as a codification in the nineteenth-century sense of the term; on the other, and partly as a result, the influence of Savigny’s idea has led to a drastic under-appreciation of the historical significance of officially promulgated collections of law. Let us briefly consider these two historiographical tendencies. Launched by Savigny and emphasised by the whole German historical school, from Puchta to Beseler and Gierke, the romantic idea that a law is nothing more than an expression of the Volksgeist has been a key concept for legal history until sur- prisingly recent times. On the specific subject of the history of legislation, the landmark study was for nearly a century Fritz Kern’s immensely successful Recht und Verfassung im Mittelalter – first published as an article in Historische Zeitschrift in 1919, then as a small book in Germany, and translated into English in 1939 and many times reprinted.4 The titles given to the first paragraphs of the book make the principle points of Kern’s thesis admirably clear: “Law is old; Law is good; The good old law is unenacted and unwritten; Old law breaks new law; legal innovation is restoration of the good old law.” This conception of legislation flows directly from the romantic nineteenth century to the nation- alist twentieth, and is a palpable presence in some recent reconstructions of the period.5 The medieval king is here described as mere “notary” of the rules that are produced by the people and consolidated over time; no intervention by the royal power can change the old good laws, since the king, and even the Emperor, is much more judge than legislator. But, despite the influence of the historical school’s romantic point of view – and in some measure because of it – legal historians have often regarded promulgated collections of medieval 3 H. Coing, in Coing, Handbuch, 3.1, 3–16 and D. Grimm, ibid., 17–122. 4 F. Kern, Kingship and Law in the Middle Ages: i. The Divine Right of Kings and the Right of Resistance in the Early Middle Ages. ii. Law and Constitution in the Middle Ages, trans with an introduction by S.B. Chrimes (Oxford: Blackwell, 1939). 5 A. de Robilant, “Genealogies of Soft Law,” American Journal of Comparative Law 54 (2006), 499–554, particularly 511–518, referring to P. Grossi, L’ordine giuridico medievale (Rome-Bari: Laterza, 1995). De Robilant (515, n. 52) underlines the image of medieval law given by Grossi, one that clearly evokes Fritz Kern’s ideas. <UN>.

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